V  Lj»  1  1  li 


WIMII  !i 


r.^r'ii.ac. 


^^toa^ 


5^  e   4  -  ><^ 

Suu!  HE'"        "K^ANC;-* 

LOl 


Ube  IRural  Science  Secies 

Edited  by  L.  H.  BAILEY 


LAW  FOR  THE  AMERICAN  FARMER 


Ube  IRural  Science  Series 

Edited  by  L.   H.  BAILEY 


LAW  FOR  THE  AMERICAN  FARMER 


Eije  i^ural  5>ctence  ^txm 

The  Soil. 

The  S prating  of  Plants. 
Milk  and  its  Products. 
The  Fertility  of  the  Land. 
The  Principles  of  Fruit-Growing. 
Bush-Fruits. 
Fertilizers. 

The  Principles  of  Agriculture. 
Irrigation  and  Drainage. 
The  Farmstead. 
Rural  Wealth  and  Welfare. 
The  Principles  of  Vegetable-Gardening. 
Farm  Poultry. 
The  Feeding  of  Animals. 
The  Farmer's  Business  Handbook. 
The  Diseases  of  Animals. 
The  Horse. 

How  to  Choose  a  Farm. 
Forage  Crops. 

Bacteria  in  Relation  to  Country  Life. 
The  Nursery-Book. 
Plant-Breeding. 
The  Forcing-Book. 
The  Pruning-Book. 
Fruit-Growing  in  Arid  Regions. 
Rural  Hygiene. 
Dry-Farming. 

Law  for  the  American  Farmer. 
Others  in  preparation. 


LAW 


FOR   THE 


AMERICAN   FARMER 


JOHN    B.    GREEN 

or    THE    NEW  YORK    BAB 


1  « 


4  H  U  T)  ;> 

THE  MACMILLAN  COMPANY 
1920 

All  rights  reserved 


COPTBIOHT,   1911, 

Bt  the  maomillan  company. 


Set  up  and  electrotyped.     Published  September,  igii. 


•  •     • 

•  •  k    « 


•  .*    .•• 


•   •    •    ". 


•  «  •      »  4 

•  •;:    : 

•  •  • .  * , 


'  .•    •    -•• 


•  • . .  •.*•  •••  V'  • 

•  •  •  ••  •  •   •  •  .  • 


C      •      *  I 

•     •    •  ,'  I 

«    « 


'  •  '    •       •    .   •  . 


Natfajoob  ^nss 

J.  8.  Cnshkig  Co.  —  Berwick  A  Smith  Co. 

Korwood,  Mass.,  U.S.A. 


THE  HONORABLE  ALFRED  SPRING 

ASSOCIATE    JUSTICE    OF    THE     SUPREME    COURT 

APPELLATE  DIVISION,  FOURTH  DEPARTMENT 

OF    THE   STATE   OF   NEW   YORK 

—  A   FINE    FARMER   YET   A   FINER   LAWYBB  — 

THIS   BOOK,    BY   PERMISSION 

IS    DEDICATED    BY 

THE   AUTHOR 


PREFACE 

(X  This  treatise  is  not  offered  to  farmers  as  a  substitute 
for  the  advice  of  a  lawyer  in  any  case  in  which  legal  coun- 
sel becomes  necessary.  No  work,  however  exhaustive  or 
ably  written,  could  possibly  fulfill  such  a  function.     Nor 

^  is  it  designed  to  be  a  text-book  for  lawyers.     The  lawyer 

^  will  find  little  or  nothing  in  it,  the  author  hopes,  strange 

to  him.     If  sometimes  it  shall  serve  the  busy  laA\yer  as 

a  finger-post   to  authorities  he  knows  to  exist,  but   for 

which  at  the  moment  he  lacks  time  or  facilities  to  search, 

1  well  and  good,  but  such  is  an  incidental,  not  the  primary, 

^  purpose  of  the  book.     The  writer  has  aimed  at  aiding  the 

^  lawyer  in  a  different  way,  by  bringing  his  client  to  him 
before  the  case  has  been  so  prejudiced  as  to  increase  the 
difficulties  of  the  professional  adviser.  The  book  has 
been  made  to  enable  the  farmer  to  recognize  his  rights 
and  duties  when  a  controversy  likely  to  ripen  in  a  litiga- 
tion is  impending,  and  to  act  in  such  wise  that  he  shall 
not  unwittingly  sacrifice  the  first  or  neglect  the  second 
to  his  injury  and  the  embarrassment  of  counsel  whose 
services  he  may  finally  retain. 

The   purpose   announced   would,    it   was   thought,   be 

more  nearly  attained  by  resorting  mainly  to  the  reports 

vii 


viii  Preface 

of  cases  for  the  law  stated.  Controversies  that  have 
arisen  and  been  adjudicated  in  the  past  would  seem  to  be 
the  same  in  kind  as  those  likely  to  occur  in  the  future; 
and  to  set  forth  their  outcome  in  the  courts  would  ap- 
parently be  the  most  useful  method  of  guiding  the  con- 
duct of  new  parties  to  old  disputes. 

Addressing  in  particular  the  American  farmer,  the 
author  has  consulted  almost  exclusively  the  decisions  of 
the  courts  in  the  United  States  to  glean  his  materials. 
The  status  of  the  farmer  and  the  land  laws  of  England 
differ  so  materially  from  both  in  the  United  States  that  the 
decisions  of  the  English  courts  were  not  available  to  a 
great  extent,  and  the  American  decisions  are  so  numerous 
that  all  the  needed  authorities  can  be  found  among  them. 

As  a  matter  of  course,  it  has  been  impossible  to  cover 
the  entire  field  of  law  relating  to  farms  and  farmers  ex- 
haustively, and  keep  the  work  within  reasonable  limits. 
Necessarily,  therefore,  some  topics  of  interest  to  prospec- 
tive readers  have  been  omitted,  but  it  is  believed  that  on 
the  whole  the  subjects  treated  are  fairly  calculated  to 
appeal  to  the  largest  number  of  persons  in  the   class 

addressed. 

J.  B.  G. 
Rochester,  N.  Y. 
November  1,  1910. 


CONTENTS 

CHAPTER   I 

§§1-7 
Law  and  Litigation 

PASK 

Law  defined  —  Written  law  —  Unwritten  law  —  Nature  of  the 
common  law  —  The  derivation  of  the  common  law  in  the 
United  States  —  Remedies  at  law  —  Pursuit  of  legal  remedies        1 

CHAPTER   II 

§§8-11 

The  Farmer  before  the  Law 

Who  are  farmers  ?  —  Within  the  national  bankrupt  law  —  Under 
statutes  exempting  property  from  levy  and  sale  upon  execu- 
tion —  Within  tax  and  license  laws  and  municipal  ordinances        7 

CHAPTER   III 

§§  12-18 
The  Modes  of  Acquiring  a  Farm 

Estates  in  land  —  How  title  to  land  is  acquired  —  Title  by  grant 

—  Delivery  of  the  deed  —  Title  by  devise  or  descent  —  Title 

by  prescription  —  Title  by  accession .13 

CHAPTER   IV 

§§  19-27 

Title  to  the  Farm  by  Deed 

Buying  the  farm  -Effect  of  a  deed  —  The  contents  of  the  deed 

—  The  covenant  of  warranty  —  The  covenant  against  encum- 

ix 


X  Contents 

PA«8 

brances  —  The  covenant  of  seisin  —  Breaches  of  the  cove- 
nants—  Covenants  that  run  with  the  land  —  Exceptions  and 
reservations  in  deeds      .         .  .....      23 

CHAPTER  V 

§§  28-34 

The  Fabmer  in  Possession  of  the  Farm 

Actual  and  constructive  possession  —  The  advantages  of  posses- 
sion—  The  nature  of  adverse  possession  —  Adverse  posses- 
sion under  color  of  title  —  Adverse  possession  by  squatter  — 
The  distinction  in  cases  of  adverse  possession  with  and  with- 
out color  of  title  —  The  intent  in  holding  adversely        .         .      3" 

CHAPTER   VI 

§§  35-38 

The  Farm  ;   its  Extent,  Area,  and  Components 

What  a  farm  is  —  The  extension  of  the  farm  —  The  area  of  the 

farm  —  Of  what  the  farm  is  composed    .....       47 

CHAPTER   VII 

§§  39-46 

The  Boundaries  of  the  Farm 

The  existence  and  recognition  of  the  boundary  —  Running  the 
lines  —  Inclosing  the  farm  —  Division  fences  —  Settling  dis- 
puted division  lines  —  Trees  on  or  near  division  lines —  High- 
ways as  boundaries —  Water  lines  .         .        .         .        .         .63 

CHAPTER    VIII 
§§  47-54 
Appurtenances  and  Easements 


Appurtenances  —  Easements  —  Fixtures  —  Trade  fixtures  — 
Rights  of  way  —  Ways  of  necessity  —  Water  service  —  Li- 
censes    ......  .  •         • 


66 


Contents  xi 

CHAPTER   IX 

§§  55-61 

Farm  Workers  and  Laborers 

PAGB 

The  legal  relation  of  the  farmer  and  his  workers  —  The  right  to 
discharge  —  The  right  to  quit  —  The  servant's  right  to 
wages  —  The  servant's  lien  for  wages  —  Liabilities  and  rights 
of  the  farmer  as  master  —  Croppers 82 

CHAPTER   X 

§§  62-76 

The  Waters  of  the  Farm 

What  the  waters  of  the  farm  comprise — Bodies  of  water  — 
Water  courses  —  Navigable  streams  —  Floatable  streams  — 
What  is  meant  by  riparian  —  Riparian  rights  —  Riparian 
duty  to  refrain  from  polluting  the  stream  —  Riparian  right 
of  access  and  wharfs  —  Surface  waters  defined  —  Disposal 
of  surface  waters  —  Restrictions  on  the  disposition  of  surface 
waters  —  Underground  and  percolating  waters  —  Ice  —  Lia- 
bility for  casualties 92 

CHAPTER   XI 

§§  77-90 
Irrigation 

Irrigation  at  common  law  —  The  limits  of  the  right  at  common 
law  —  The  doctrine  of  appropriation  —  Making  an  appro- 
priation—  The  quantity  of  water  that  may  be  taken  for 
irrigation  —  The  character  of  irrigation  conduits  and  works 
—  Rights  of  irrigators  under  appropriation  —  Title  to  and 
location  of  irrigable  land  —  Water  rights  for  irrigation  as 
property  —  Irrigation  as  a  public  use  of  water  —  State  con- 
trol, regulation,  and  administration  of  irrigation  —  Charac- 
teristics of  irrigation  companies  —  Rights  and  duties  of 
irrigation  companies  —  Measurement  of  water  used  for 
irrigation 112 


xii  Contents 

CHAPTER   XII 

§§  91-96 

The  Police  Power  of  the  State 


PAGB 


The  nature  of  the  police  power  —  The  limits  of  the  police  power 
—  Quarantine  and  inspection  laws  —  The  abatement  of 
nuisances  —  The  power  to  destroy  private  property  —  Official 
immunity  and  liability  for  loss  or  damage  by  exercises  of 
the  police  power 139 


flHAPTER   XIII 

§§  97-101 

The  Police  Power  in  Municipalities 

The  relations  of  the  farmer  with  neighboring  towns  —  Nuisances 
in  municipalities  —  Animals  in  the  public  streets  —  Regulat- 
ing collection  and  removal  of  garbage  —  Huckstering    .        .     149 

CHAPTER   XIV 

§§  102-108 

Laws  to  secure  Pure  Milk 

The  general  regulation  of  milk  production  and  sale — Sales  regu- 
lation with  reference  to  conditions  of  production  —  License 
laws  —  The  right  to  seize  milk  without  payment  —  The  legal 
right  to  prescribe  standards  of  richness  —  Laws  against  adul- 
teration—  The  regulation  of  measures  of  quantity         .        .156 


CHAPTER   XV 

§§  109-113 

Pure  Food  Laws 

General  scope  and  validity  —  Limitations  on  the  power  of  the 
legislature  —  Congressional  legislation  —  State  legislation  — 
Laws  requiring  identifying  marks  .         .         .         .         .         .164 


Contents  xiii 


CHAPTER   XVI 

§§  114-122 

Crops  and  Other  Farm  Produce 


PASB 


Husbandry  and  the  products  of  the  farm — The  legal  status  of 
growing  crops  —  Emblements — Effect  of  severing  crops  from 
the  soil  —  Damages  for  loss  or  destruction  of  crops  —  Rights 
of  landlord  and  tenant  in  the  crops  —  Crops  grown  on  shares 
—  Estovers  —  Manure  170 

CHAPTER   XVII 

§§  123-135 

Live-stock 

Animals  in  the  statutes  —  Registration  of  animals — Cruelty  to 
animals  —  Estrays  —  Animals  running  at  large  —  Liability 
of  owner  for  acts  of  domestic  animals — Liabilities  and  re- 
dress for  diseased  animals  —  Runaway  horses  —  Fright  in 
horses  —  Trespasses  of  animals  —  Injuries  to  trespassing  ani- 
mals —  Agisters  —  The  progeny  of  domestic  animals     .         .     184 

CHAPTER   XVIII 
§§  136-140 

Dogs 

Dogs  in  the  statutes  —  Dogs  as  property  —  Liability  for  injuries 
done  by  dogs  —  The  lawful  killing  of  dogs — Sheep-killing 
dogs .     206 

CHAPTER   XIX 
§§  141-144 

Contracts 

The  nature  of  a  contract  —  Classification  of  contracts  —  The 
essentials  of  a  contract  —  Construction  and  interpretation 
of  contracts 216 


PASS 


xiv  Contents 

CHAPTER   XX 
§§  145-150 

Oral  and  Written  Contracts 

The  statute  of  frauds  — The  validity  of  oral  contracts  —  Con- 
tracts concerning  real  property  —  Contracts  not  to  be  per- 
formed within  the  year  —  Effect  of  performance  or  part, 
performance  of  oral  contracts  within  the  statute  of  frauds  — 
Oral  abrogation  or  alteration  of  written  contracts .        .        .     224 

CHAPTER   XXI 
§§  151-159 

The  Enforcement  of  Contracts 

Time  for  performance  when  not  fixed  —  Compelling  specific  per- 
formance —  Avoiding  performance  —  Excuses  for  non-per- 
formance —  Illegal  contracts  —  Wagering  or  gambling 
contracts  —  Contracts  obtained  by  fraud  —  Contracts  pro- 
cured by  duress  —  Contracts  made  under  mistake  .        .     233 

CHAPTER   XXII 

§§  160-168 

Sales 

The  state  of  the  law  of  sales  —  The  essentials  of  a  sale  —  Execu- 
tory and  executed  contracts  of  sale  —  The  intention  of  the 
parties  —  Offers  and  acceptances  —  Sales  made  out  of  a  mass 

—  The  "American  doctrine,"  so  called  —  The  wiser  practice 

—  Sales  of  indefinite  quantities 249 

CHAPTER   XXIII 

§§  169-176 

Completing  Sales 

Delivery  —  The  requisites  of  a  delivery  —  The  sale  and  delivery 
of  live-stock — Delivery  of  warehouse  receipts  —  Delivery  to 
common  carriers —  Effect  of  buyer's  accepting  the  property 

—  Remedy  when  buyer  refuses  to  accept  the  property  .        .     261 


Contents  xv 

CHAPTER   XXIV 
§§  176-184 
Warranty 

PAGB 

Express  and  implied  warranties  in  sales  —  Seed  and  nursery 
stock  —  Grain,  fruit,  and  vegetables  —  Food  for  man  — 
Food  for  animals  —  Horses  and  other  animals  —  Animals 
sold  for  breeding  purposes  —  Farming  implements  and  ma- 
chinery—  Buyer's  rights  and  remedies 271 

CHAPTER   XXV 
§§  185-194 

Factors  or  Commission  Merchants 

The  commission  merchant  as  the  law  knows  him  —  Powers  of 
factors  —  Limitations  of  factor's  authority  —  The  duty  of 
factors  —  Factor's  liability  to  consignor  —  Sales  by  factors 
to  themselves  —  Factor's  compensation  and  lien  —  Factor's 
right  to  reimburseuient  for  advances  —  The  consignor's  title 
to  goods  and  proceeds  —  Regulation  by  statute  of  commission 
merchants  and  their  business 287 

CHAPTER   XXVI 
§§  195-200 

Common  Carriers 

Common  carriers  of  freight  —  Public  obligations  of  carriers  — 
The  legal  meaning  of  the  term  "act  of  God"  —  Examples 
of  what  are  and  what  are  not  acts  of  God  —  Act  of  God  and 
concurrent  negligence  of  carrier  —  The  public  enemy    .         .    30] 

CHAPTER    XXVII 
§§  201-210 

Duties  op  Common  Carriers 

Duty  to  receive  freight  —  Duty  to  furnish  cars — Duty  to  furnish 
suitable  cars  —  Duty  to  furnish  cars  free  from  defects  — 
Terminal  facilities  for  reception  and  delivery  of  freight  — 


xvi  Contents 

TJLOi 

Duty  not  to  delay  or  deviate  —  Duty  to  deliver  to  consignee 

—  Duty  to  make  good  freight  lost  in  transit  —  Duty  to  care 

for  live-stock  iu  transit — Duty  respecting  perishable  property    310 

CHAPTER  XXVIII 

§§  211-215 
Rights  and  Immunities  of  Common  Carriebs 
Right  to  make  rules  and  regulations  —  Limitation  of  liability  by 
special  contract — Bill  of  lading  as  a  contract  for  carriage 

—  Concerning  perishable  property  —  Concerning  drovers 
accompanying  live-stock 326 

CHAPTER  XXIX 

§§  216-233 

Insurance  op  Property  against  Fire  and  Other  Losses 

The  nature  of  insurance  —  The  insurance  contract  and  its  ele- 
ments—  Completing  the  contract  —  The  policy  —  Delivery 
and  acceptance  of  policy  —  Rules  for  construing  insurance 
policies  —  Representations  and  warranties  by  insured  —  The 
renewal  of  fii-e  insurance  —  Cancelling  the  policy  —  The  risks 

—  Location  of  insured  property  —  Restrictions  against  in- 
crease of  hazard  —  Vacant  and  unoccupied  property  —  In- 
surable interest  in  insured  property  —  Conditions  respecting 
ownership,  encumbrances,  and  other  insurance  —  Notice  and 
proof  of  loss  —  "Waivers  by  underwriters — Time  limitations 

on  the  bringing  of  suit 334 

CHAPTER  XXX 

§§  234-239 

Cooperative  Fire  Insurance 

Features  in  common  with  other  insurance  —  Distinction  between 
cooperative  and  other  insurance  companies  —  The  contract 
between  a  cooperative  insurance  company  and  a  member  — 
Tiie  liability  of  policy  holders  to  assessment  —  Rights  and 
remedies  of  policy  holders  in  case  of  loss  —  Official  criticism 
of  cooperative  fire  insurance 359 


LAW  FOR  THE  AMERICAN  FARMER 


LAW  FOR  THE  AMERICAN  FARMER 


CHAPTER  I 

LAW   AND   LITIGATION 

§§  1-7 
§  1.     Law  defined. 

A  learned  lawyer,  in  beginning  one  of  the  standard  legal 
text-books/  has  said  that  the  principles  upon  which  all 
laws  are  founded  are  those  of  common  sense.  It  is  this 
truth  which  justifies,  as  he  proceeded  to  point  out,  the  rule 
that  ignorance  of  the  law  is  no  excuse  for  violating  it, 
because  it  is  in  the  power  of  every  man  by  means  of  ordi- 
nary intelligent  attention  to  the  conduct  of  others  to 
ascertain  what  are  his  own  duties,  and  every  sane  man  is 
able  to  conform  his  own  conduct  to  the  laws  deducible 
from  human  habit.  For  all  present  purposes  law  may  be 
considered,  not  comprehensively  nor  philosophically,  but 
usefully,  as  a  body  of  rules  to  regulate  and  govern  human 
conduct  which  are  recognized  and  apphed  in  a  civilized 
state  by  courts  of  justice  in  deciding  controversies  among 
men.  These  rules  are  written  and  unwritten,  or  statutory 
and  common. 

*  Browne,  Law  of  Carriers. 
B  1 


2  Law  for  the  American  Farmer 

§  2.     Written  law. 

Written  law  is  the  expressed  will  of  the  supreme  power  of 
the  state.  It  is  broadly  designated  as  statute  law.  In 
the  United  States  it  is  embodied  in  constitutions,  Federal 
and  state,  adopted  by  the  people  in  their  sovereign  capac- 
ity, in  the  enactments  of  the  national  Congress  and  of  the 
legislatures  of  the  several  states,  in  the  by-laws  and  ordi- 
nances of  municipal  corporations  and  other  local  govern- 
mental bodies  passed  pursuant  to  legislative  authority, 
and  to  a  quite  limited  extent  in  judicial  rules  designed  to 
regulate  procedure  in  the  courts. 

§  3.     Unwritten  law. 

The  bulk  of  our  law,  declared  the  foremost  American 
lawyer  of  his  age,^  on  one  occasion,  is  composed  of  those 
unwritten  precepts  and  rules  which  are  recognized  and 
enforced  by  the  judicial  tribunals  irrespective  of  smy  legis- 
lative sanction.  This  unwritten  or  common  law,  what- 
ever its  origin,  is  found  in  the  decisions  of  the  courts  apply- 
ing to  concrete  facts,  traditional  and  ancient  doctrines,  and 
principles  deemed  in  consonance  with  the  public  welfare 
and  conservative  of  rights  of  person  and  property  belong- 
ing to  individuals.  It  is  necessarily  the  outgrowth  of 
established  usage  and  long-accepted  and  continued  cus- 
toms. The  science  of  law,  to  quote  the  great  historian  of 
the  decline  and  fall  of  the  Roman  Empire,^  has  a  "very 
intimate  relation  to  the  progress  of  civilization,  and  the 
study  of  the  one  must  embrace  the  other."  Because 
the  common  law  grows  out  of  the  established  customs  of 

«  James  C.  Carter.  '  Chap.  XLIV. 


Law  and  Litigation  3 

the  people  it  varies  from  age  to  age  and  in  different  com- 
munities. 

§  4.    Nature  of  the  common  law. 

The  common  law  affords  a  rule  and  guide  to  determine 
the  merits  of  a  controversy  between  individuals  when  there 
is  no  pertinent  legislation  upon  the  subject.  It  is  simply 
the  right  reason  of  a  matter  as  to  which  there  is  no  statute."- 
Reason,  it  is  said,  is  the  life  or  soul  of  the  law.^  When  the 
reason  for  any  particular  law  ceases  to  exist,  the  law  itself 
becomes  obsolete.^  The  spirit  of  the  common  law  is  the 
spirit  of  common  sense.''  In  short,  as  one  court  expressed 
it,  the  common  law  is  the  embodiment  of  broad  and  com- 
prehensive unwritten  principles  inspired  by  natural  reason 
and  an  innate  sense  of  justice  and  adopted  by  common 
consent  to  regulate  and  govern  human  affairs.* 

§  5.  The  derivation  of  the  common  law  in  the  United 
States. 
The  term  "common  law"  in  this  country  is  usually 
understood  to  mean  the  unwritten  law  of  England  and 
such  statutes  as  had  been  enacted  by  the  Parhament  of 
Great  Britain  and  were  in  force  before  the  emigration  of  the 
first  settlers  of  America.^  The  English  common  law  as 
shown  to  have  been  established  by  the  decisions  of  the 

1  Wilson  V.  Leary,  120  N.  C.  90. 
»  Deitzman  v.  MuUin,  108  Ky.  610. 
»  Tripp  V.  Nobles,  136  N.  C.  99. 

*  Bader  v.  New-Amsterdam  Cas.  Co.,  120  Am.  St.  Rep.  613. 
8  State  V.  St.  P.,  M.  &  M.  Ry.,  98  Minn.  380. 

•  Cowhick  V.  Shingle,  5  Wyo.  87. 


4  Law  for  the  American  Farmer 

English  courts  before  1775,  so  far  as  it  applies  to  American 
conditions  and  is  unmodified  by  or  not  inconsistent  with 
our  constitutions  and  statutes,  prevails  generally  in  the 
United  States.* 


§  6.    Remedies  at  law. 

"Every  well  trained  lawyer  will  assent  to  the  observa- 
tion that  in  cases  of  difficulty  the  first  necessity  is  to 
devote  the  closest  attention  to  the  facts  of  the  transaction. 
In  the  great  majority  of  cases  this  method  will  solve  all 
difficulties.  .  .  .  The  principles  of  the  classification,  — 
the  scientific  order,  —  that  is,  the  law,  already  exists. 
The  task  is  to  ascertain  the  true  features  of  the  fact  or 
groupings  of  fact,  and  when  this  is  done  the  transaction 
seems  as  it  were  to  arrange  itself  in  its  appropriate  class." ^ 
It  is  a  maxim  of  the  law  that  where  there  is  a  wrong 
there  is  a  remedy,^  and  that  there  can  be  no  wrong  with- 
out a  remedy.'*  This  maxim,  however,  does  not  apply  to 
acts  authorized  by  statute,^  and  there  is  no  legal  remedy 
for  that  which  is  in  itself  illegal.^  A  legal  remedy  by  an 
appeal  to  the  courts  is  available  whenever  a  legal  right  is 
invaded.^     The  right  of  every  citizen  to  the  protection  of 

>  Waters  &  Co.  v.  Gerard,  189  N.  Y.  302  ;  Kinkead  v.  Turgeon,  74  Neb. 
680. 

*  James  C.  Carter. 

»  Perry  v.  Farmers  Ins.  Co.,  1.39  N.  C.  374 ;  Beeks  v.  Dickinson  Co. 
131  Iowa,  244. 

*  Hughes  V.  Auburn,  161  N.  Y.  96 ;  Philomath  Coll.  v.  Wyatt,  27  Ore. 
390. 

'  Pietach  v.  Milbrath,  123  Wis.  647. 

*  U.  S.  Bank  v.  Owens,  2  Pet.  527. 

'  Marbury  v.  Madison,  1  Cranch,  137. 


Law  and  Litigation  5 

the  laws  is  essential  to  civil  liberty.^  But  for  a  wrong 
without  damage  as  for  damage  without  a  wrong  there  is 
no  legal  remedy.^ 

§  7.     Pursuit  oj  legal  remedies. 

A  remedy  in  the  legal  sense  is  the  means  by  which  a 
suitor  in  a  court  of  justice  secures  the  enforcement  of  his 
cause  of  action,  and  a  cause  of  action  is  simply  the  right 
to  enforce  an  obligation  regardless  of  how  that  obligation 
arose. ^  A  cause  of  action  comprises  every  fact  which  a 
plaintiff  must  prove  to  obtain  a  judgment  or  which  a 
defendant  has  a  right  to  controvert.^  No  cause  of  action 
exists  unless  there  are  in  existence  persons  capable  of 
suing  and  being  sued  upon  it.^  Actions  and  suits  in 
courts  of  justice  are  either  civil  or  criminal.  The  criminal 
ones  are  prosecutions  by  the  sovereignty  of  those  who 
have  been  guilty  of  public  offenses.  The  civil  ones  are 
prosecuted  by  natural  or  artificial  persons  against  others 
to  protect  and  enforce  rights  and  to  prevent  and  redress 
wrongs.  A  civil  suit  is  the  prosecution  of  a  demand  in  a 
court  of  justice,^  and  is  any  proceeding  therein  in  which 
one  pursues  his  remedy  to  enforce  a  right  or  recover  a 
claim  against  another.^  Friendly  suits  are  not  disap- 
proved, but  on  the  contrary  are  favored  and  encouraged 

»  Ihid. 

2  Janesville  v.  Carpenter,  77  Wis.  288. 
s  Frost  V.  Witter,  132  Cal.  421. 
*  Chesapeake  &  O.  R.  R.  v.  Dixon,  179  U.  S.  131. 
6  Riner  v.  Riner,  166  Pa.  St.  617. 
6  Cohen  v.  Virginia,  6  Wheat.  264. 

'  Grover  &  B.  Sew.  Mach.  Co.  v.  Florence  Sew.  Mach.  Co.,  18  Wall 
663. 


6  Law  for  the  American  Farmer 

as  greatly  facilitating  the  doing  of  justice  between  per- 
sons ;  but  there  must  be  a  real  controversy  with  adverse 
interests  and  a  litigation  in  good  faith.  A  collusive  pro- 
ceeding is  a  contempt  of  court,  and  a  judgment  got  by 
means  of  it  is  a  nullity.^  It  is  for  the  public  interest  that 
litigation  should  end.^ 

1  Lord  V.  Veazie,  8  How.  251 ;  Cleveland  v.  Chamberlain,  1  Black,  419. 
»  Fisher  v.  Fielding,  67  Conn.  91 ;    Womach  v.  St.  Joseph,  201  Mo. 
467 ;  State  v.  Marah,  134  N.  C.  184 ;  Abbott  v.  Thome,  34  Wash.  692. 


CHAPTER  II 

THE   FARMER   BEFORE   THE   LAW 

§§  8-11 
§  8.     Who  are  farmers  ? 

To  one  who  does  not  pause  to  reflect  upon  the  subject, 
the  question,  "What  distinguishes  a  farmer  from  persons 
in  occupations  other  than  agricultural  and  stock  raising  ?  " 
appears  unnecessary  because  the  answer  seems  obvious. 
Yet  courts  which  have  been  called  upon  to  decide  whether 
or  not  a  litigant  was  included  in  a  statute  conferring 
privileges  upon  farmers  denied  to  citizens  in  general,  or 
imposing  burdens  upon  all  citizens  except  farmers,  have 
had  much  difficulty  with  this  very  question.  If  a  man 
devotes  himself  wholly  or  chiefly  to  the  tillage  of  the 
Boil,  he  is  in  law  a  farmer,  though  he  may  call  himself  a 
horticulturist,  viticulturist,  or  a  gardener."^  A  farmer  is 
a  cultivator  of  a  considerable  tract  of  land  in  some  one 
or  more  of  the  customary  and  recognized  ways  of  farm- 
ing.2  To  constitute  one  a  farmer,  it  is  not  indispensable 
that  he  should  till  the  ground  in  person,  nor  that  his 
operations  should  be  limited  to  agricultural  planting, 
sowing,  and  cultivating  the  soil.  A  farmer  may  cultivate 
all  or  only  part  of  his  land.     He  may  grow  wheat,  corn, 

>  Slade's  Estate,  122  Cal.  434. 
»  O'Neil  V.  Pleasant  Prairie  Ins.  Co.,  71  Wis.  621. 

7 


8  Law  for  the  American  Farmer 

oats,  rye,  or  grasses,  as  he  may  judge  to  be  most  useful  or 
profitable.  He  may,  in  connection  therewith,  breed,  feed, 
and  rear  cattle,  horses,  mules,  sheep,  and  hogs  for  domestic 
use  or  sale,  and,  if  he  chooses,  may  feed  his  produce  to 
his  stock  instead  of  sending  it  to  market. ^  He  is  a  planter 
who  is  engaged  in  producing  crops  from  land,  whether  he 
sows  and  reaps  with  his  own  hands,  or  those  of  a  tenant, 
a  cropper,  or  a  hired  laborer.^  And  yet  the  owner  of  a 
farm  who  simply  makes  it  his  legal  residence,  and  is 
much  away  from  home,  while  all  the  farming  is  done  by 
others,  is  not  a  farmer.^  But  if  he  lives  on  his  farm  and 
makes  farming  his  chief  occupation,  he  is  classed  as  a 
farmer  although  he  does  such  other  things  as  publishing 
a  weekly  newspaper  and  making  and  patenting  pro- 
prietary medicines.^  And  conversely  one  is  not  a  farmer 
before  the  law  although  he  owns  and  to  some  extent 
works  a  farm  if  his  real  business  is  something  else.^ 

§  9.     Within  the  National  Bankrupt  Law. 

A  farmer,  when  farming  is  his  chief  occupation,  by 
the  provisions  of  the  Federal  Bankrupt  Act  cannot  be 
forced  against  his  will  into  bankruptcy.  To  get  the 
benefit  of  this  immunity  it  does  not  matter  that  a  farmer 
has  other  business  than  farming.  If  his  principal  occu- 
pation is  agriculture  and  he  devotes  most  of  his  time  to 
that  and  relies  mostly  upon  its  returns  for  his  income 

'  Dearborn  Bank  v.  Matney,  132  Fed.  75. 

»  Butler  V.  Ga.  &  A.  R.  R.,  119  Ga.  959. 

'  .Johnson  v.  Loudon  Acci.  Co.,  115  Mich.  86. 

*  McCue  V.  Tunstead,  65  Cal.  .506. 

'  Rochester  v.  Pettingcr,  17  Wend.  265. 


The  Farmer  before  the  Law  9 

and  wealth,  he  is  chiefly  engaged  in  farming  and  not  to 
be  subjected  to  involuntary  bankruptcy.^  He  may,  for 
example,  besides  being  a  farmer,  keep  a  retail  shop  and 
be  an  agent  to  sell  fertilizers,^  or  he  may  even  keep  an 
office  and  practice  law  and  still  be  chiefly  engaged  in 
farming.^  That  a  farmer  keeps  cows  partly  from  the 
products  of  his  farm  and  sells  milk  at  retail,  even  if  he 
also  buys  and  distributes  milk  produced  by  others,  does 
not  make  him  any  the  less  chiefly  engaged  in  farming  or 
any  the  more  liable  to  involuntary  bankruptcy.^  By 
making  a  general  assignment  for  creditors  a  farmer  does 
not  render  himself  liable  to  be  forced  into  bankruptcy.^ 
A  person  is  not  chiefly  engaged  in  farming  so  as  not  to 
be  amenable  to  involuntary  proceedings  in  bankruptcy 
when  the  occupation  or  business  which  is  of  principal 
concern  to  him,  and  of  more  or  less  permanence,  and  the 
one  on  which  he  mainly  depends  for  his  livelihood,  is 
something  other  than  farming  although  he  is  also  occu- 
pied as  well  in  tilling  land.^  For  instance,  one  whose 
products  from  the  land  he  cultivates  do  not  exceed  two 
thousand  dollars  in  value  annually,  while  yearly  he  spends 
on  an  average  fifteen  thousand  dollars  in  buying  live-stock 
and  fodder  for  which  he  incurs  most  of  his  debts,  cannot 
truthfully  claim  to  be  chiefly  engaged  in  farming  and  there- 
fore may  be  forced  by  his  creditors  into  bankruptcy.' 

1  Wulbern  v.  Drake,  120  Fed.  493. 

2  Rise  V.  Bordner,  140  Fed.  566. 

3  Hoy's  case,  137  Fed.  175. 

*  Gregg  V.  Mitchell,  166  Fed.  725. 

6  Olive  V.  Armour  &  Co.,  167  Fed.  517. 

^  Brown's  case,  132  Fed.  706. 

^  Dearborn  Bank  v.  Matney,  supra. 


10  Law  for  the  American  Farmer 

§  10.     Under  statutes  exempting  property  from  levy  and 
sale  upon  execution. 

A  man  who  earns  his  living  by  farming  is  entitled  to 
the  statutory  exemptions  of  a  farmer  although  at  the 
time  an  execution  is  levied  upon  the  property  claimed  to 
be  exempt  he  does  not  own  or  lease  a  farm  and  is  not 
engaged  in  any  particular  farm  work.^  A  farmer  does 
not  lose  any  of  his  statutory  privileges  of  exemption 
from  execution  while  moving  from  one  to  another  farm.^ 
Within  the  meaning  and  purpose  of  the  exemption  statutes 
a  man  who  follows  another  trade  for  a  livelihood  is  not 
deemed  a  farmer  or  a  person  engaged  in  agriculture  be- 
cause he  cultivates  a  kitchen  garden  and  raises  vegetables 
on  an  acre  lot.^ 

§  11.     Within  tax  and  license  laws  and  municipal  ordi- 
nances. 

There  is  not  entire  harmony  in  the  decisions  of  the 
courts  as  to  the  application  of  tax  and  license  laws  and 
municipal  regulations  to  farmers,  even  in  cases  where 
there  can  be  no  doubt  of  the  claimant's  right  to  be  classed 
as  a  farmer.  Much  of  the  discord  can  be  explained  upon 
differences  in  the  wording  of  the  pertinent  statutes  and 
ordinances,  but  these  differences  will  not  account  for  all 
the  conflict.  The  contradictions  will  be  plain  when  the 
rulings  of  the  several  courts  mentioned  below  are  care- 
fully  considered.     A  produce   dealer  is  the  term   com- 

>  Hickman  v.  Cruise,  72  Iowa,  528. 
»  O'Donnell  v.  Segar,  25  Mich.  367. 
*  Simons  v.  Lovell,  7  Heisk.  510. 


The  Farmer  before  the  Law  11 

monly  applied  to  one  whose  business  is  buying  and  sell- 
ing fruit,  butter,  eggs,  poultry,  cereals,  and  garden  truck ;  ^ 
it  does  not  include  a  farmer  who  brings  to  market  and 
sells  his  own  produce.^  In  Kentucky  the  courts  have 
declared  that  a  farmer,  although  he  may  carry  to  market 
and  sell  what  he  raises  or  makes  on  his  farm,  is  never 
included  in  laws  applying  to  merchants  in  general.^  In 
Pennsylvania  it  has  been  decided  that  a  statute  impos- 
ing a  tax  upon  dealers  in  merchandise  does  not  apply  to 
a  farmer  who  sells  the  products  of  his  own  farm  in  the 
markets  of  neighboring  towns  even  when  occasionally  he 
carries  to  market  and  sells  along  with  his  own  the  prod- 
uce of  his  neighbors.'*  A  city  ordinance  in  Idaho  which 
prohibited  farmers  from  selling  the  products  of  their  own 
farms  within  the  city  limits  without  first  procuring 
licenses  was  adjudged  invalid.^  And  the  Supreme  Court 
of  Michigan  has  declared  that  a  city  is  powerless  to  shut 
out  the  producers  of  fresh  provisions  and  farm  and  garden 
produce  from  direct  and  convenient  access  to  their  cus- 
tomers.^ A  farmer  hawking  for  sale  the  products  of  his 
own  farm  is  not  classed  as  a  peddler  in  the  license  and 
police  laws  and  regulations  of  Pennsylvania  and  Loui- 
siana,'^ but  in  Minnesota,  one  who  peddles  the  produce  of 
his  own  farm  or  garden  in  a  city  is  lawfully  subject  to 

1  Kan.  City  v.  Lorber,  64  Mo.  App.  604 ;  Dist.  Col.  v.  Oyster,  4  Mack. 
285. 

«  U.  S.  V.  Simmons,  27  Fed.  Cas.  1080. 

8  Ragsdale's  case,  20.  id.  175  ;   Dyott  v.  Letcher,  29  Ky.  641. 

*  Barton  v.  Morris,  10  Phila.  Rep.  360. 
s  Snyder's  Case,  10  Idaho,  682. 

•  Hughes  V.  Detroit  Recorder's  Court,  75  Mich.  574. 

1  Com.  V.  Gardner,  133  Pa.  St.  284  ;  Roy  v.  Schuff,  51  La.  Ann.  86. 


12  Law  for  the  American  Farmer 

pay  a  license  fee  imposed  by  municipal  ordinance  upon 
peddlers.^  In  Massachusetts  a  municipality  may  by 
ordinance  require  all  persons  to  obtain  permits  from  a 
clerk  of  the  market  before  offering  for  sale  in  certain 
streets  products  of  the  farm.^  The  fact  that  one  raises 
his  own  produce  gives  him  no  right  in  Louisiana  to  sell 
it  in  violation  of  a  municipal  ordinance.^  In  that  state, 
too,  a  planter  or  a  farmer  who  keeps  a  store  on  his  plan- 
tation or  farm  and  sells  goods  and  liquors,  although  to  no 
one  but  his  own  employees,  must  take  out  a  license  such 
as  everybody  "doing  a  business  at  retail"  is  required  by 
a  statute  to  have.*  And  in  the  same  state,  a  person  en- 
gaged in  the  business  of  deahng  in  vegetables  in  the  pub- 
lic markets  does  not  come  under  an  exception  in  a  license 
statute  of  those  engaged  in  agricultural  pursuits.^  This 
is  quite  right,  for  in  New  York  it  has  been  decided  that  a 
butcher  carrying  on  a  retail  meat  market  for  his  liveli- 
hood is  not  classifiable  as  a  farmer  selling  the  meat  and 
produce  of  his  own  farm  within  an  exception  in  a  munic- 
ipal ordinance  regulating  sales  within  the  city  limits  of 
meat  and  farming  truck,  even  though  he  does  own  a  farm 
in  the  neighborhood  and  runs  it  to  supply  his  shop.^ 
The  exemption  of  peddlers  of  agricultural  or  farm  products 
from  laws  requiring  peddlers  in  general  to  take  out  licenses 
does  not  vitiate  such  laws  as  class  legislation.^ 

»  state  V.  Jensen,  100  N.  W.  644. 

*  Nightingale's  Case,  11  Pick.  168;   Com.  v.  Brooks,  109  Mass.  365. 
»  State  V.  Sarradat,  46  La.  Ann.  700. 

♦  Thibaut  r.  Krarnoy,  45  La.  Ann.  149. 
»  State  V.  Cendo.  38  La.  Ann.  828. 

•  Rochester  v.  Pettinger,  supra. 

»  McKnight  v.  Hodge,  104  Pac.  507. 


CHAPTER  III 

THE  MODES   OF  ACQUIRING   A   FARM 

§§  12-18 
§  12.    Estates  in  land. 

An  estate  is  the  degree,  quantity,  nature,  and  extent 
of  the  interest  a  person  has  in  real-property.^  An  estate 
in  fee  simple  is  an  estate  to  one  and  his  heirs  forever.^ 
Such  an  estate  includes  all  qualifications  or  restrictions 
as  to  the  persons  who  may  inherit  as  heirs.^  It  is  the 
fullest  and  most  absolute  estate  one  can  have  in  lands.* 
It  is  the  highest  estate  recognized  in  the  law  ^  —  the 
largest  known  to  the  law.^  A  title  in  fee  is  a  full  and 
absolute  estate  beyond  and  outside  of  which  there  is  no 
other  interest  or  even  shadow  of  right.^  All  restrictions 
on  the  power  of  a  grantee  to  deal  with  land  conveyed  to 
him   in  fee   simple  absolute   are   repugnant   and   void.^ 

1  Messmore  v.  Williamson,  189  Pa.  St.  73. 
«  Brown  v.  Freed,  43  Ind.  253. 
»  Warden  v.  Lyons,  118  Pa.  St.  396. 
*  Robb  V.  Beaver,  8  Watts  &  S.  107. 
6  McMillan  v.  Anderson,  95  U.  S.  37. 
«  Brackett  v.  Ridlon,  54  Me.  426. 

">  Earnest  v.  Little  River  Land  &  Luni.  Co.,  109  Tenn.  427. 
»  Kessner  v.  Phillips,  189  Mo.  515. 

13 


14  Law  for  the  American  Farmer 

This,  therefore,  is  the  estate  the  farmer  should  acquire 
when  he  gets  his  farm.  The  law  favors  vested  rather 
than  contingent  estates.^ 

§  13.     How  title  to  land  is  acquired. 

The  ownership  of  land  is  gained  in  three  ways:  first, 
by  a  grant  from  a  previous  owner ;  second,  by  operation 
of  law ;  and  third,  by  the  addition  to  land  already  owned 
of  more  land  through  the  working  of  the  forces  of  nature. 
The  grant  may  take  any  one  of  several  forms;  it  may 
be  a  patent  from  the  sovereign,  or  a  deed  of  bargain  and 
sale,  gift,  or  quit-claim  from  a  living  owner,  or  a  devise 
by  the  last  will  and  testament  of  one  who  died  seised  of 
the  land.  Title  by  operation  of  law  vests  in  two  ways  : 
first,  by  descent  to  the  heir  of  an  owner  who  died  in- 
testate; and,  second,  through  an  adverse  possession  for 
such  a  period  of  time  as  has  been  prescribed  by  the  local 
statute  of  limitations.  And  lastly,  one  who  owns  land 
upon  the  sea-shore,  the  margin  of  a  lake,  or  the  bank  of 
a  stream  may  acquire  more  land  through  the  action  of 
the  waters  in  building  up  accretions  or  in  retreating  and 
uncovering  land  hitherto  submerged. 

§  14.     Title  by  grant. 

The  title  to  land  is  best  shown  by  a  grant  from  the 
sovereign  of  the  soil  and  a  regular  chain  of  conveyances 
uniting  it  to  the  possessor.^  In  tracing  titles  slight  proof 
of  the  identity  of  a  grantor  in  the  chain  is  sufficient; 

»  Chartrand  v.  Braco,  IG  Colo.  19. 

»  Sulphur  Mines  Co.  v.  Thompson,  93  Va.  293. 


The  Modes  of  acquiring  a  Farm  15 

identity  of  name  is  prima  facie  or  presumptive  proof  of 
identity  of  person/  but,  of  course,  the  presumption  is 
not  conclusive.2  A  deed  is  necessarily  a  written  instru- 
ment.^ It  is  a  writing  wtiich  transfers  an  interest  in 
real  estate  from  one  owner  to  another.*  Although  a 
grantor  can  convey  no  greater  estate  than  he,  himself, 
has,^  yet  a  quit-claim  deed  will  convey  all  the  interest  he 
has  at  the  time  he  makes  it.^  In  its  popular  sense  a  deed 
means  a  conveyance  of  the  fee  in  land.^  A  deed  is  an 
executed  contract  ^  and  none  the  less  a  contract  from  not 
being  signed  by  the  grantee.^  It  is,  however,  simply  the 
contract  of  conveyance  and  does  not  necessarily  express 
the  contract  of  the  sale  and  purchase  of  the  land  it  con- 
veys. i°  A  deed  passes  at  once  to  the  grantee  a  present 
interest  in  the  land  conveyed  by  it  although  it  may  be 
that  the  right  to  possess  and  enjoy  that  land  will  not 
accrue  until  later. ^^  The  execution  of  a  deed  consists  in 
the  signing,  and  sealing  (wherever  seals  are  required),  of 
it  by  the  grantor  and  the  delivery  of  it  to  the  grantee ;  it 
is  the  consummation  of  the  contract  to  convey  —  the 
effectual  completion  of  the  conveyance.  ^^ 

>  Stebbins  i\  Duncan,  108  U.  S.  32. 

2  Wilson  V.  Holt,  83  Ala.  528 ;    Williams's  Est.  128  Cal.  552, 

3  Pierson  v.  Townsend  (N.  Y.)  2  Hill,  550. 
*  Reed  v.  Hazleton,  37  Kan.  321. 

'  Gregg  V.  Sayre,  8  Pet.  244. 

«  Babeock  v.  Wells,  25  R.  I.  23  ;  Livingstone  v.  Murphy,  187  Mass.  315. 

'  Sanders  v.  Riedinger,  30  App.  Div.  277. 

8  Watkins  v.  Nugen,  45  S.  E.  262. 

»  Wierengo  v.  Amer.  Fire  Ins.  Co.,  98  Mich.  621. 

i»  Lynch  v.  Moser,  72  Conn.  714. 

"  Bowdoin  Coll.  v.  Merritt,  75  Fed,  480. 

12  Brown  ».  Westerfield,  47  Neb.  399. 


16  Law  for  the  American  Farmer 

§  15.     Delivery  of  the  deed. 

In  the  popular  sense  delivery  means  a  mere  tradition 
of  a  deed,  but  in  law  it  signifies  the  final  absolute  transfer 
from  grantor  to  grantee  of  a  complete  legal  instrument.^ 
A  deed  takes  effect  only  from  the  time  it  is  delivered.^ 
It  does  not  become  operative  until  it  is  accepted  by  the 
grantee,  for  his  acceptance  is  necessary  to  complete  the 
delivery.^  Delivery  is  all  important ;  that  is  the  final 
act  of  the  grantor  which  makes  his  conveyance  effectual, 
and  without  it  all  other  formalities  will  not  suffice  to 
pass  title.^  Delivery,  or  what  is  legally  equivalent  to  a 
delivery,  of  a  deed  is  absolutely  essential  for  it  to  take 
effect.^  The  delivery  of  a  deed  is  the  absolute  transfer  of 
it  after  it  has  been  duly  executed  in  such  a  way  that  the 
grantor  cannot  recall  it.®  A  delivery  of  a  deed  may  be 
either  actual  or  constructive,  but  it  must  in  any  case  be 
the  unqualified  surrender  of  all  dominion  over  it.''  No 
particular  form  or  ceremony  is  requisite  to  effect  the 
delivery  of  a  deed ;  any  words  or  conduct  manifesting 
an  unconditional  giving  of  it  up  are  enough.^  When  a 
deed  has  once  been  delivered,  the  title  has  irrevocably 

>  Black  V.  Shreve,  13  N.  J.  Eq.  455. 

»  Calhoun  Co.  v.  Amer.  Emig.  Co.,  93  U.  S.  124. 

9  Tyler  v.  Cate,  29  Ore.  515.  . 

*  Provart  v.  Harris,  150  111.  40  ;  Best  v.  Brown,  25  Hun,  223. 

'  U.  S.  Bank  v.  Dandridge,  12  Wheat.  64J  Parmellee  v.  Simpson,  5  Wall. 
81 ;  Gore  v.  Dickinson,  98  Ala.  363  ;  Porter  v.  Woodhouse,  59  Conn.  56S  ; 
Weber  v.  Christen,  121  111.  91  ;    Colee  v.  Colec.  122  Ind.  109. 

•  Byers  v.  McClanahan,  6  Gill  &  J.  250. 

'Tucker  v.  Allen,  IG  Kan.  312;  Payne  v.  Hallgarth,  33  Ore.  430; 
Brown  v.  Dickerson,  2  Marv.  119. 

«  Benncson  v.  Aiken.  102  111.  284;  Tarlton  v.  Griggs,  131  N.  C.  216; 
White  V.  White,  34  Ore.  141. 


The  Modes  of  acquiring  a  Farm  17 

passed  from  the  grantor,  and,  for  this  reason,  he  cannot 
be  again  clothed  with  title  by  any  such  simple  proceed- 
ing as  returning  the  deed  and  agreeing  to  cancel  and 
destroy  it.^  It  may,  however,  in  certain  circumstances 
give  him  an  equitable  right  to  a  title. ^  The  possession 
of  a  deed  by  the  grantee  named  in  it  is  prima  facie  proof 
of  its  delivery,^  and  .so  also  is  its  possession  by  the  grantee's 
personal  representatives.*  The  recording,  or  leaving  with 
the  proper  officer  to  be  recorded,  of  a  deed  implies  that 
it  was  delivered  to  the  grantee.^  Deeds  are  presumed  to 
have  been  executed  and  delivered  on  the  days  they  bear 
date  even  when  they  are  acknovv^ledged  later.^  When  a 
deed  duly  executed  is  not  delivered  to  the  grantee,  but 
given  instead  to  a  third  person  to  be  delivered  to  him  later 
upon  the  performance  of  some  condition  or  the  happening 
of  some  contingency,  it  is  said  to  be  delivered  in  escrow ; 
and  when  a  deed  is  delivered  in  escrow,  it  does  not  pass  title 
until  it  is  delivered  to  the  grantee  when  the  contemplated 
contingency  has  happened  or  the  prescribed  condition  has 
been  fulfilled.^  A  deed  is  of  no  effect  if  delivered  without 
the  consent  and  against  the  will  of  the  grantor.* 

1  Washington  v.   Ogden,    1  Black,  450 ;    Mead  v.  Pinyard,  154  U.  S. 
620;   Ames  v.  Ames,  80  Ark.  8. 

2  Grossman  v.  Keister,  223  111.  69. 

5  Sicard  v.  Davis,  6  Pet.  124 ;  Hanrick  v.  Neely,  10  Wall.  364  ;  Strough 
V.  Wilder,  119  N.  Y.  530 ;  Devereux  v.  McMahon,  108  N.  C.  134. 

«  Lewis  V.  Watson,  98  Ala.  479. 

6  Fisher  v.  Hall,  41  N.  Y.  416 ;   Cooper  v.  Jackson,  4  Wis.  537 ;   Whit- 
aker  v.  Whitakcr,  175  Mo.  1. 

«  L.  E.  &  W.  R.  R.  V.  Whitham,  155  111.  514  ;  Conley  v.  Finn,  171  Mass. 
70 ;   Purdy  v.  Coar,  109  N.  Y.  448 ;    McFarlane  v.  Louden,  99  Wis.  620. 

7  Hubbard  v.  Greeley,  84  Me.  340;   Cagger  v.  Lansing,  57  Barb.  421; 
Thomas  v.  Sowards,  25  Wis.  631. 

»  Felix  V.  Patrick,  145  U.  S.  317. 
c 


18  Law  for  the  American  Farmer 

§  16.     Title  hy  devise  or  descent. 

The  title  to  land  passes  from  one  living  individual  to 
another  only  by  a  deed/  but  a  will  is  just  as  effective  as  a 
deed  to  pass  title  to  land;  only,  title  by  will  does  not 
pass  to  a  devisee  until  the  death  of  the  testator,  and  he 
may  revoke  the  devise  any  time  before  he  dies.^  Tech- 
nically, a  devise  is  the  testamentary  disposition  of  land.' 
It  is  the  written  direction  of  a  testator  of  sound  mind  for 
the  disposal  of  his  landed  property  after  death.*  Devise 
is  the  proper  word  to  denote  the  gift  of  real  estate  by 
will.^  Title  by  descent  is  the  title  one  acquires  as  heir 
at  law  upon  the  death  of  an  ancestor  to  the  estate  of 
which  the  ancestor  died  seised.^  Technically,  descent  de- 
notes the  transmission  of  real  estate  upon  the  death  of 
its  owner  without  a  will  and  by  inheritance  to  a  succes- 
sor indicated  by  law."^  Title  by  devise  is  a  title  by  pur- 
chase, the  same  as  if  it  was  given  by  deed;  whereas  title 
by  descent  is  a  title  vested  by  operation  of  law.^ 

§  17.     Title  hy  prescription. 

Title  by  prescription  is  a  right  which  a  person  in  the 
possession  of  land  upon  which  he  entered  at  first  wath- 

1  Morris  V.  Harmer,  7  Pet.  554. 

»  Jordan  v.  Jordan's  Admr.,  65  Ala.  301 ;  McDaniel  v.  Johns,  45  Miss. 
632  ;  Hazleton  v.  Reed,  40  Kan.  73. 

»  Scholle  V.  Scholle,  113  N.  Y.  261 ;  Ferebcc  v.  Procter,  19  N.  C.  439: 
Davis's  Will,   103  Wis.  455. 

*  Jenkins  v.  Tobin,  31  Ark.  30G. 

'  Borgner  v.  Brown,  133  Ind.  391 ;  Oothout  v.  Rogers,  59  Hun,  97 ; 
MrPorkle  v.  Shcrnll.  41  N.  C.  173. 

•  Adams  v.  Akiriund,  IGS  111.  032  ;  Bennett  v.  Hibbert,  88  Iowa,  154: 
Priest  V.  Cummings,  20  Wend.  338  ;  Freeman  v.  Allen,  17  Ohio  St.  527. 

'  Hudnjill  r.  Ham.  172  III.  7f>. 
8  Allen  i\  Bland,  LU  hid.  78. 


The  Modes  of  acquiring  a  Farm  19 

out  right  acquires  by  an  adverse  possession  of  it  during 
the  time  fixed  by  statute. ^  It  is  the  same  as  title  by 
limitation.^  Formerly  the  whole  theory  of  title  to  land 
by  prescription  was  thought  to  depend  on  a  supposititious 
grant.^  It  was  said  that  a  grant  would  be  presumed 
from  a  sufficiently  long  and  uninterrupted  possession  of 
land  under  a  claim  of  ownership ;  ^  and  that  when  the 
possessor  of  land  lacked  any  conveyance  of  it,  he  might 
show  title  by  proving  such  a  state  of  facts  as  would  war- 
rant presuming  a  grant. ^  This  presumption  that  there 
had  been  a  grant  to  the  adverse  possessor  of  land,  how- 
ever, arose  only  after  the  adverse  possession  had  con- 
tinued for  the  statutory  limitation  period.^  No  presump- 
tion of  a  grant  could  arise  until  that  time  had  expired, 
and  then  only  in  respect  of  so  much  of  the  land  as  had 
been  actually  occupied,^  so  that  after  all,  title  by  prescrip- 
tion really  rested  upon  the  statute  of  limitations.  Now- 
adays the  statute  of  limitations  is  regarded  as  enough  in 
itself  for  the  foundation  of  a  title  by  prescription.  In 
modern  times  statutes  of  limitations  are  more  favorably 
regarded  than  they  were  anciently;  they  are  no  longer 
thought  to  be  harsh,  but  are  considered  statutes  of  quiet 
and  beneficent  because  they  tend  to  end  disputes  and 
prevent  htigation.^     The  object  of  a  statute  of  limitations 

1  Burdell  v.  Blain,  66  Ga.  169. 

*  Dalton  V.  Rentaria,  2  Ariz.  275. 
»  Burbank  v.  Fay,  65  N.  Y.  57. 

*  Smith  V.  Cornelius,  41  W.  Va.  59. 

*  Sulphur  Mines  Co.  v.  Thompson,  supra. 

*  Gayetty  v.  Bethune,  14  Mass.  53. 
'  Snoddy  v.  Kreutch,  3  Head  301. 

8  Nelson  v.  First  Nat.  Bank,  139  Ala.  578. 


20  Law  for  the  American  Farmer 

is  to  quiet  persons  in  their  possessions.^  It  is  a  statute 
of  repose  operating  to  mature  a  wrong  into  a  right  by 
cutting  off  the  remedy,  and  its  effect  is  to  shut  out  all 
inquiry  into  the  true  title  and  to  award  a  title  to  him 
who  has  had  possession  of  the  land  for  the  length  of  time 
it  has  prescribed.^  A  title  gained  by  adverse  possession 
is  marketable.^  Such  a  title  is  a  complete  legal  one 
created  and  conferred  by  law,  flowing  from  the  statute 
and  not  from  any  contract  for  succession  of  ownership 
which  could  be  put  in  writing  and  recorded.^ 

§  18.     Title  hy  accession. 

Land  that  borders  on  the  sea  or  inland  waters  often 
grows  by  the  action  of  the  waters.  It  grows  in  two 
ways.  The  waves  of  the  sea  cast  sand  upon  the  beach, 
the  lakes  cast  earth  upon  their  shores,  and  the  streams 
bring  down  mud  and  leave  their  burden  upon  their  banks  ; 
or,  ocean,  lake,  and  river  retreat  and  uncover  land  which 
their  waters  formerly  overflowed.  These  two  different 
processes  are  called  accretion  and  reliction.  Accretion 
is  that  addition  to  littoral  or  riparian  land  made  by  the 
gradual  deposit  of  soil  upon  the  shores  of  tide  waters  or 
banks  of  streams  by  natural  causes,^  and  riparian  owners 
acquire  all  accretions  resulting  from  gradual  changes  in 
the  shore  lines  of  the  streams  opposite.^     The  land  formed 

>  Turpin  v.  Brannon,  3  M'Cord  L.  261. 

*  Creekmur  v.  Crcokmur,  75  Va.  430. 
'  Barnard  v.  Brown,  112  Mich.  452. 

*  MacGregor  v.  Thompson,  7  Tex.  Civ.  App.  32. 
s  St.  L.  I.  M.  &  S.  Ity.  V.  RaniHpy,  53  Ark.  314. 

*  Welles  V.  Bailey,  55  C^oun.  2'J2. 


The  Modes  of  acquiring  a  Farm  21 

by  accretion  is  termed  alluvion  or  alluvial  land,  and  it  is 
formed  by  sedimentary  deposits  added  by  the  imper- 
ceptible action  of  the  bordering  water. ^  The  chief  char- 
acteristic of  alluvion  is  an  imperceptible  gro\vth  so  that 
it  cannot  be  perceived  how  much  is  the  increase  in  each 
moment  of  time ;  ^  for  title  to  be  acquired  to  alluvion, 
its  increase  must  be  unperceived.^  Title  to  alluvion  is 
purely  accessory;  it  attaches  exclusively  to  riparian 
ownership  and  is  incapable  of  independent  existence.'* 
An  accretion  becomes  a  part  of  the  land  to  which  it  is 
built  and  follows  whatever  title  covers  the  mainland 
whether  it  is  title  by  deed  or  title  by  possession.  In  its 
nature  it  is  not,  while  forming,  susceptible  of  that  kind  of 
possession  which  characterizes  the  occupation  of  dry 
land;  but  it  attaches  to  the  dry  land  even  while  it  is 
under  water,  and  it  is  in  the  actual  possession  of  him 
who  holds  actual  possession  of  the  upland,  or,  if  the 
mainland  is  in  fact  not  occupied,  then  it  is  in  the  con- 
structive possession  of  the  owner  of  the  true  title ;  but 
if  the  mainland  is  held  in  adverse  possession,  then  the  true 
owner  has  no  constructive  possession  of  the  accretion ;  the 
indicia  of  the  adverse  possession  extends  to  the  forming 
alluvion.^  "  Reliction  "  is  the  term  applied  to  land  added 
to  shore  land  by  the  slow  and  imperceptible  permanent 
retreat  of  overlying  waters.*^  Land  which  is  occasionally 
and  temporarily  uncovered  by  the  retreat  of  the  waters 

1  Sapp  V.  Frazier,  51  La.  Ann.  1718. 

2  Freeland  v.  Penn'a  R.  R.,  197  Pa.  St.  529. 
8  Halsey  v.  McCormick,  18  N.  Y.  147. 

*  White  V.  Leovy,  49  La.  Ann.  1660. 

5  Bellefontaine  Improv.  Co.  v.  Niedringhaus,  181  111.  426. 

6  Hammond  v.  Shepard,  186  id.  235  ;   Sapp  v.  Frazier,  supra. 


22  Law  for  the  American  Farmer 

of  a  lake  or  stream  only  to  be  flowed  again  is  not  added 
to  adjoining  land  by  reliction.^  The  owner  of  land 
bordered  by  waters  acquires  no  title  to  land  uncovered 
or  built  up  artificially  by  human  action;  the  doctrine  of 
accretion  does  not  apply  to  land  reclaimed  by  man  by 
filling  in  soil  under  water ;  2  nor  does  the  doctrine  of 
reliction  apply  to  land  uncovered  through  the  operation 
of  public  drainage.^  Alluvial  accretions  to  lands  belong- 
ing to  several  owners  are  to  be  divided  among  the  riparian 
proprietors  by  extending  their  side  lines  to  the  nearest 
river  bank  so  as  to  give  each  owner  the  accretion  formed 
in  front  of  his  own  tract.'*  The  extent  of  the  old  frontage 
upon  the  water  is  the  most  important  factor  in  deter- 
mining the  new  frontage  when  land  formed  by  accretion 
is  to  be  divided  among  several  proprietors ;  the  bearings 
and  courses  of  the  side  lines  are  of  minor  importance.^ 
If  an  island  forms  in  a  navigable  stream,  the  owner  of  the 
land  opposite  acquires  no  title  to  it,  even  if  by  accretion 
it  reaches  and  unites  with  his  land  on  the  shore.^ 

'  Sapp  V.  Frazier,  supra. 

'  Sage  V.  N.  Y.  City.  154  N.  Y.  61. 

3  Noycs  V.  Collins,  92  Iowa,  566. 

*  Hubbard  i-.  Manwoll,  60  Vt.  2.35. 

'  Newell  V.  Leathers,  50  La.  Ann.  162. 

«  Moore  v.  Farmer,  156  Mo.  33 ;  Holman  v.  Hodges,  112  Iowa,  714. 


CHAPTER  IV 

TITLE  TO  THE  FARM  BY  DEED 

§§  19-27 
§19.     Buying  the  farm. 

One  who  acquires  a  farm  by  the  Avill  or  as  the  heir  of 
one  who  died  owning  it,  simply  takes  whatever  title  the 
testator  or  intestate  had  at  the  time  of  his  death,  —  no 
more,  no  less.  The  law  takes  care  of  and  assures  him 
all  his  rights.  But  one  who  purchases  a  farm  from  its 
living  owner  is  obliged  to  look  out  for  himself  and  make 
sure  either  that  he  gets  that  for  which  he  has  bargained 
and  paid,  or,  if  he  does  not,  that  he  is  secured  against 
loss.  Every  one  who  purchases  a  farm  desires,  of  course, 
a  perfect  title,  and  a  perfect  title  is  one  which  shows  the 
absolute  right  of  property  and  possession  in  his  particu- 
lar person.^  It  is  the  duty  of  one  who  sells  real  property 
to  make  the  title  good ;  ^  the  covenant  of  the  vendor  to 
give  a  good  title  is  implied  in  every  contract  to  sell  land.^ 
A  buyer  of  land  who  stipulates  for  a  good  title  cannot 
be  compelled  to  take  one  that  is  not  marketable."*  A 
title  may  be   good   and  yet   be   unmarketable.^     Every 

1  Henderson  v.  Beatty,  99  N.  W.  716. 

2  Perry  v.  Boyd,  126  Ma  162. 

3  Meyer  v.  Madreperla,  68  N.  J.  L.  258. 
*  Hedderly  v.  Johnson,  42  Minn.  443. 

«•  Block  V.  Ryan,  4  Dist.  Col.  App.  283. 
23 


24  Law  for  the  American  Farmer 

buyer  of  real  estate  is  entitled  to  a  marketable  title.^  A 
good  title  in  sales  of  land  is  not  merely  a  valid  title,  but 
one  that  is  marketable  as  well  —  such  a  title  as  a  reason- 
able man  will  purchase  or  accept  as  security  for  a  loan,^ 
A  title  is  not  marketable  if  he  who  accepts  it  is  exposed 
to  litigation  in  defending  it.^  A  marketable  title  is  not 
only  a  good  title,  but  one  that  is  beyond  and  free  from 
reasonable  doubt.'*  A  title  is  unmarketable  if  upon  the 
facts  or  the  law,  there  is  a  reasonable  doubt  about  its 
validity.^  A  contract  to  furnish  a  satisfactory  title  is 
fulfilled  when  a  good,  marketable  title,  free  from  reason- 
able doubt,  is  furnished. "^  A  title  depending  on  the 
statute  of  limitations  is  a  marketable  title  if  it  is  clearly 
established  beyond  all  doubt  that  the  former  owner  is 
barred.'^  If  a  title  is  open  to  a  reasonable  doubt,  no 
court  can  make  it  marketable  by  deciding  an  objection 
dependent  upon  a  disputed  question  of  fact  or  a  debata- 
ble question  of  law  when  the  person  in  whom  the  out- 
standing supposed  right  may  be  vested  is  not  a  party 
to  the  controversy  pending  before  the  court.^ 

§  20.     Effect  of  a  deed. 

An  invalid  deed  may  be  a  good  contract  for  the  sale 
of  the  land  it  purports  to  convey.^     A  grantee  who  per- 

>  Vought  V.  Williams,  120  N.  Y.  253. 
«  Moore  v.  Williams,  115  N.  Y.  586. 
'  Herman  v.  Somers,  158  Pa.  St.  424  ;  Brokaw  v.  Duffy,  165  N.  Y.  .391. 

•  Ormsby  v.  Graham,  12.3  Iowa,  202  ;   Austin  v.  Barnum,  52  Minn.  1.30  ; 
Kilpatrirk  v.  Barron,  125  N.  Y.  751  ;   Holmes  v.  Woods,  168  Pa.  St.  530. 

^  Hcfklerly  v.  Johnson,  and  Herman  v.  Somers,  supra. 

•  Moot  V.  Business  Men's  Inv.  Asso.,  157  N.  Y.  201. 

'  Pratt  V.  Ehy,  67  Pa.  St.  396.  »  Brokaw  v.  Duffy,  supra. 

•  Lyon  V.  Pollock,  99  U.  S.  G68. 


Title  to  the  Farm,  by  Deed  25 

sonally  accepts  and  retains  a  conveyance  made  to  him  is 
presumed  to  know  its  contents. ^  The  acceptance  of  the 
deed  will  bind  the  grantee  upon  its  covenants  as  effectu- 
ally as  would  his  signature  to  it.^  Of  course,  the  deed 
binds  the  grantor ;  he  cannot  have  it  set  aside  merely 
because  he  omitted  to  read  it  ^  unless,  indeed,  he  was  in- 
duced by  fraud  not  to  read  it  and  its  contents  were  mis- 
represented to  him.*  It  is  an  essential  feature  of  a  deed 
that  the  description  of  the  land  conveyed  by  it  shall  be 
sufficiently  certain  and  definite  to  identify  or  furnish  the 
means  to  identify  what  is  intended  to  be  conveyed.^  A 
deed,  for  example,  of  a  certain  quantity  of  land  to  be 
taken  from  a  larger  tract,  and  which  is  merely  described 
as  lying  on  both  sides  of  a  highway,  is  void  for  uncertainty.^ 
It  is,  however,  a  maxim  of  the  law  that  whatever  can  be 
made  certain  will  be  deemed  certain.'^  An  addition  to  or 
change  in  a  deed  does  not  avoid  it  if  made  by  consent 
of  both  the  parties.^  An  erasure  or  interlineation  in  a 
deed  does  not  affect  its  validity  if  made  before  its  execu- 
tion, and  when  one  appears  in  a  deed,  it  is  presumed  to 
have  been  made  before  execution ;  ^  but  an  interlinea- 
tion or  erasure  in  a  material  part  of  a  deed  made  after  it 
has  been  executed  and  delivered  will  make  it  void.^"     A 

•  Blinn  v.  Chessman,  49  Minn.  140. 

2  Hickey  v.  L.  S.  &  M.  S.  R.  R.,  51  Ohio  St.  40. 

3  Hale  V.  Hale,  62  W.  Va.  609. 

*  Acme  Food  Co.  v.  Older,  17  L.  R.  A.  (N.  S.)  807. 
6  McRoberts  v.  McArthur,  62  Minn.  310. 

«  Smith  V.  Proctor,  139  N.  C.  314. 
"  Abercrombie  v.  Simmons,  71  Kan.  538. 
8  Speake  v.  U.  S.,  9  Cranch,  28. 
»  Hanrick  v.  Patrick,  119  U.  S.  156. 
M  Van  Home  v.  Dorrance,  2  Dall.  304. 


26  Law  for  the  American  Farmer 

deed  made  to  correct  a  mistake  in  a  prior  deed  will,  in 
respect  of  the  land  described  and  its  boundaries,  prevail 
over  the  earlier  conveyance.^  The  actual  and  true  con- 
sideration for  a  deed  may  always  be  proved  by  oral  testi- 
mony no  matter  what  consideration  is  expressed  in  the 
instrument,-  and  it  may  always  be  proven,  if  such  is  the 
fact,  that  the  grantor  whose  signature  purports  to  be 
appended  to  it  never  executed  the  deed.^  These  are  well- 
recognized  exceptions  to  the  general  rule  of  evidence  that 
oral  testimony  shall  not  be  received  to  vary  the  terms  of 
a  written  instrument. 

§  21.     The  contents  of  the  deed. 

It  has  already  been  noted  ^  that  a  quit-claim  deed 
(which  is  a  mere  release)  will  convey  whatever  and  all 
the  title  a  grantor  may  happen  to  have  when  he  executes 
and  delivers  it ;  and  it  follows  that  if  such  title  is  really 
one  in  fee  simple  absolute  that  the  grantee  will  get  it. 
But  no  prudent  purchaser  properly  advised  will  accept 
or  agree  to  accept  a  simple  quit-claim  deed.  Its  office 
practically  is  limited  to  extinguishing  real  or  fancied  out- 
standing titles  for  the  sake  of  peace.  The  purchaser  of  a 
farm  should  insist  upon  a  higher  form  of  deed ;  and  the 
higher  forms  of  deed  extend  through  several  gradations 
from  a  plain  bargain  and  sale  to  a  full  covenant  and 
warranty  deed.     The  principal  covenants  will  be  referred 

»  Builders'  M'rt'g.  Co.  v.  Berkowitz.  118  N.  Y.  Suppl.  804. 
»  Hiltz  V.  Metrop.  Bank,  111  U.  S.  722;    Richardson  v.  Traver,  112  id, 
423. 

»  Marsh  v.  Nichols,  S.  &  Co.,  128  id.  605. 
«Seean<e.  Chap.  III.  §  14. 


Title  to  the  Farm  by  Deed  27 

to  later,  but  some  other  provisions  of  the  deed  are  worthy 
of  passing  notice.  It  is  quite  true  that  a  deed  of  real 
property  will  pass  the  appurtenances  to  it  without  using 
the  word  or  an  equivalent  term ;  ^  and  yet  it  will  be  wise 
in  one  taking  a  deed  to  a  farm  to  see  that  it  conveys  in 
terms  the  ''lands,  tenements,  hereditaments,  and  appur- 
tenances," because  each  of  these  words  adds  something 
of  strength,  and  all  together  include  all  lands  and  inter- 
ests in  lands,  corporeal  and  incorporeal,  which  descend 
to  an  heir  at  law.^  The  word  "tenements"  often  has  a 
somewhat  wider  meaning  than  land,  for  while  the  latter 
word  comprehends  any  ground,  soil,  or  earth,  such  as 
meadow,  pasture,  woods,  moors,  waters,  marshes,  furzes, 
and  heaths,  the  former  includes  land,  rents,  commons,  and 
sundry  other  rights  and  interests  connected  with  land.^ 
In  the  ordinary  acceptation  of  the  word,  hereditaments 
apply  to  houses  and  other  structures,  but  legally  it  em- 
braces everything  heritable ;  ^  it  is  a  word  of  more  ex- 
tended signification  than  lands  or  tenements  and  denotes 
everything  capable  of  being  inherited.^ 

§  22.     The  covenant  oj  warranty. 

One  of  the  principal  covenants  in  a  deed  is  the  cove- 
nant of  warranty,  by  which  the  grantor  warrants  and 
undertakes  to  defend  the  title.  A  warranty  in  a  deed  is 
a  covenant  of  protection  or  indemnity  in  case  that  which 

1  Jarvis  v.  Seele  Mill.  Co.,  173  111.  192 ;   Scott  v.  Moore,  98  Va.  668. 

2  Bedlow  V.  Stillwell,  91  Hun,  384. 

3  Canfield  v.  Ford,  28  Barb.  336. 

•*  Musgrave  v.  Sherwood,  23  Huii,  669. 
6  Nellis  V.  Munson,  108  N.  Y.  453. 


28  Law  for  the  American  Farmer 

is  granted  is  disturbed.^  The  covenant  of  warranty  is  an 
undertaking  by  the  grantor  that  if  the  title  which  his 
deed  purports  to  convey  fails  in  whole  or  in  part  and 
the  grantee  is  ousted  by  a  superior  title,  he  will  make 
compensation  for  the  loss  sustained  by  the  failure  of 
title.-  By  the  covenant  of  warranty  the  grantor  under- 
takes to  protect  the  premises  conveyed  against  all  lawful 
claims  and  demands  existing  at  the  time  of  the  grant.^ 
He  assures  the  grantee  a  permanent  and  undisturbed 
possession  of  the  premises.^  The  covenant  of  warranty 
and  the  covenant  for  quiet  enjoyment  and  peaceable 
possession,  often  added,  are  virtually  the  same;  what- 
ever constitutes  a  breach  of  the  one  is  a  breach  of  the 
other,^  A  covenant  of  general  warranty  applies  only  to 
the  estate  conveyed.  It  does  not  enlarge  that  estate.® 
It  adds  nothing  to  the  grant.'^  A  warranty  does  not  run 
against  baseless  attacks  upon  the  title.^  To  amount  to  a 
breach  of  a  covenant  of  quiet  enjoyment  the  acts  of  dis- 
turbance complained  of  must  be  united  to  a  lawful  title.^ 

§  23.     The  covenant  against  encumbrances. 

A  general  covenant  of  warranty  is  held  not  to  embrace 
a  covenant  against  encumbrances,^"  so  these  should  be 

1  Allison  V.  Allison,  1  Yerg.  16. 
'  King  V.  Korr's  admr.,  5  Ohio,  154. 
'  King  V.  Kilbride,  58  Conn.  109. 

*  Kincaid  v.  Brittain,  37  Tenn.  119  ;  Wight  p.  Gottschalk,  48  S.  W.  141. 
'  Prestwood  v.  MeGowin,  128  Ala.  267. 

«  Hull  V.  Hull,  35  W.  Va.  155;    Reynolds  v.  Shaver,  59  Ark.  299. 
'  Babcock  v.  Wells,  54  Atl.  596. 
«  Thornn  v.  Clark.  112  Iowa,  548. 
»  Barry  v.  Guild,  126  111.  439. 
»o  Peo.  Sav.  Bank  v.  Parisette,  68  Ohio  St.  450. 


Title  to  the  Farm  by  Deed  29 

specifically  covenanted  against.  An  encumbrance  upon 
land  is  a  right  to  or  interest  in  it  subsisting  in  a  third 
person  and  which  lessens  its  value  to  the  owner  of  the 
fee.^  It  is  a  burden  or  clog  upon  the  title,^  or  anything 
whatever  that  is  a  lien  upon  the  land.^  Any  hen,  ease- 
ment, or  servitude  resting  upon  land  will  come  within  the 
term  "  encumbrance."  ^  A  general  covenant  in  a  deed 
against  encumbrances  cannot  be  varied  by  oral  proof 
that  a  particular  encumbrance  was  known  and  intended  to 
be  excepted,  but  it  may  be  shown  that  the  grantee  under- 
took to  discharge  a  particular  encumbrance  and  that  the 
consideration  for  the  deed  was  correspondingly  reduced.^ 
If  an  encumbrance  is  seemingly  valid  but  really  invalid,  it 
constitutes  a  cloud  upon  the  title. ^  A  covenant  some- 
what like  the  covenant  against  encumbrances  often  in- 
serted in  a  deed  is  the  covenant  against  the  grantor's  acts. 
It  is  not  the  same  and  should  never  be  accepted  instead. 
For  example,  a  general  covenant  against  encumbrances 
covers  taxes ;  ^  but  a  grantor's  covenant  against  encum- 
brances due  to  anything  done  or  suffered  by  him  does 
not  embrace  taxes  that  are  liens  upon  the  land  at  the  time 
it  is  conveyed  but  which  are  not  payable  until  afterwards.^ 

1  Prescott  V.  Trueman,  4  Mass.  627  ;  Huyck  v.  Andrews,  113  N.  Y.  81 ; 
Kelsey  v.  Remer,  43  Conn.  129.  • 

2  Seitzinger  v.  Weaver,  1  Rawle,  377. 

3  Campbell  v.  Hamilton  Ins.  Co.,  51  Me.  69. 

4  Harrison  v.  Dcs.  M.  &  Ft.  D.  R.  R.,  91  Iowa,  114;  Batley  v.  Foer- 
derer,  162  Pa.  St.  460;  Clark  v.  Swift,  44  Mass.  390;  Gerry's  case,  112 
Fed.  958. 

6  Johnson  v.  Elmen,  94  Tex.  168. 

6  Goodkind  v.  Bartlett,  136  111.  18 ;  Teal  v.  Collins,  9  Ore.  89. 

7  McPike  V.  Heaton,  131  Cal.  109. 

8  Smith  V.  Eigerman,  5  Ind.  App.  269. 


30  Law  for  the  American  Farmer 

§  24.     The  covenant  of  seisin. 

The  covenant  of  seisin  is  an  important  one.  In  its 
customary  form  it  is  a  covenant  that  the  grantor  is  well 
and  truly  seised  of  a  good  and  indefeasible  title  and 
estate  of  inheritance  in  fee  simple  absolute  and  has  a 
good  right  to  convey  it  in  the  manner  and  form  of  his 
deed.  In  American  jurisprudence  seisin  means  generally 
ownership/  and  at  common  law  it  signifies  possession.- 
A  covenant  of  seisin  and  a  covenant  of  good  right  to 
convey  mean  the  same  thing  in  a  deed.^  A  covenant  in 
a  conveyance  of  land  that  the  grantor  is  seised  of  an  in- 
defeasible estate  in  fee  simple  is  a  covenant  of  perfect 
title.^  It  is  a  covenant  for  title.^  The  grantor  who  gives 
a  covenant  of  seisin  may  be  called  upon  at  any  time 
afterwards  to  make  a  perfect  title."  Seisin  means  the 
whole  legal  title.'^  The  covenant  of  seisin  is  an  assurance 
to  the  grantee  that  the  grantor  has  the  very  estate  which 
he  undertakes  to  convey.^  And  like  the  covenant  of 
seisin  a  covenant  of  title  assures  the  purchaser  that  the 
grantor  has  the  estate  both  in  quantity  and  quality  that 
he  assumes  to  grant. ^  The  covenant  of  right  to  convey 
is  equivalent  to  a  covenant  of  seisin. ^°    A  covenant  of 

1  McNitt  V.  Turner,  16  Wall.  352. 
«  Bragg  V.  Wiseman,  47  S.  E.  90. 
'  Peters  v.  Bowman,  98  U.  S.  56. 

*  Douglass  V.  Lewis,  1.31  U.  S.  75. 
'  Kincaid  v.  Brittain,  supra. 

•  Baker  v.  Hunt.  40  111.  204. 

'  Fitzhugh  V.  Croghan,  2  J.  J.  Marsh.  429. 

»  De  Long  v.  Spring  Lake  &  Sea  Girt  Co.,  65  N.  J.  L.  1 ;    Wetzell  v. 
Richcreek.  53  Ohio  St.  62 ;    Curtis  j).  Brannon,  98  Tenn.  153. 
»  Bownc  V.  Wolcott,  1  N.  Dak.  415. 
>»  Adams  v.  Schiffer,  1 1  Colo.  15 ;   Allen  v.  Sayward,  5  Greenl.  227. 


Title  to  the  Farm  by  Deed  31 

seisin  does  not  estop  a  grantor  from  setting  up  in  himself 
an  after  acquired  paramount  title ;  it  requires  a  covenant 
of  warranty  to  produce  such  an  effect.^ 

§  25.     Breaches  of  the  covenants. 

No  cause  of  action  arises  upon  a  covenant  of  warranty 
in  a  deed  until  an  eviction,  either  actual  or  constructive, 
has  taken  place.^  To  constitute  an  eviction  within  a 
covenant  of  warranty  the  occupant  of  land  must  be  dis- 
possessed by  one  who  has  the  real  title  to  the  premises.^ 
It  was  once  deemed  necessary  in  order  to  constitute  an 
eviction  that  the  possession  of  the  premises  should  be 
disturbed  by  legal  proceedings,  but  this  is  no  longer  the 
case;  if  the  disturbing  title  is  really  paramount  and 
possession  is  yielded  to  it,  the  breach  of  warranty  is  com- 
plete.* The  actual  expulsion  of  its  possessor  from  the 
land  is  not  essential  to  an  eviction  so  as  to  amount  to  a 
breach  of  warranty;  but  it  is  enough  if  the  free  and 
uninterrupted  use  of  the  land  is  substantially  disturbed.^ 
No  eviction  is  necessary  to  give  a  right  of  action  upon  a 
broken  covenant  of  seisin,^  that  covenant,  if  broken  at 
all,  is  broken  the  very  instant  it  is  made.^  It  is  broken 
as  soon  as  the    deed    containing  it  is  delivered ;  ^  the 

»  Thompson  v.  Thompson,  19  Me.  235. 

*  Wight  V.  Gottschalk,  supra. 

'  Ferriss  v.  Harshea,  8  Tenn.  48. 

*  Cowdrey  v.  Coit,  44  N.  Y.  382. 

»  EUer  V.  Moore,  48  App.  Div.  403  ;  Wusthoff  v.  Schwartz,  32  Wash.  337. 
«  Pollard  V.  Dwight,  4  Cranch,  421;    Le  Roy  v.  Beard,  8  How.  451; 
Peters  v.  Bowman,  supra. 
■>  Ibid. 
8  Abbott  V.  Allen,  14  Johns.  248 ;  Clement  v.  Rutland  Bank,  61  Vt.  298. 


32  Law  for  the  American  Farmer 

grantee's  right  of  action  for  the  breach  is  complete  at 
once.^  The  same  thing  is  true  of  the  covenant  against 
encumbrances ;  if  land  is  encumbered  when  it  is  con- 
veyed, the  covenant  is  broken  the  moment  the  deed  is 
delivered,^  but  the  damages  are  not  substantial  until  the 
encumbrance  is  enforced.^ 

§  26.     Covenants  that  run  with  the  land. 

A  covenant  is  said  to  run  with  the  land  when  either 
the  liability  to  perform  it  or  the  right  to  enforce  it  passes 
to  subsequent  grantees/  that  is,  when  it  enures  to  such 
as  are  privy  in  estate  with  the  grantee  to  whom  the 
covenant  was  made.  The  phrase  "privity  in  estate" 
denotes  mutual  or  successive  relationship  to  the  same 
rights  of  property.^  Examples  of  covenants  that  run 
with  the  land  are  a  covenant  against  waste,  —  not  to  cut 
timber  or  plow  meadows ;  ^  the  covenant  of  a  railroad 
company  to  fence  and  keep  fenced  its  right  of  way  through 
the  premises  of  the  covenantee ;  ^  and  a  covenant  by  a 
grantee  of  land  with  water  rights  to  pipe  enough  water 
to  the  grantor's  residence  for  all  domestic  uses.^  Now 
the  covenant  of  warranty  runs  with  the  land ;  ^    so  does 

1  Webb  V.  Wheeler,  17  L.  R.  A.  (X.  S.)  1178. 

'  Bailey  v.  Agawam  Bank,  190  Mass.  20 ;  Hanlin's  case,  133  Wis.  140. 

'  Hanlin's  case,  supra. 

*  Hurxthal  v.  St.  Lawrence  Boom  Co.,  53  W.  Va.  87. 
'  Mygatt  V.  Coe,  124  N.  Y.  212. 

•  Kellogg  V.  Robinson,  6  Vt.  27G. 

'  Midland  Ry.  v.  Fisher,  125  Ind.  19 ;  Kelly  v.  Nypano  R.  R.,  200 
Pa.  St.  229. 

8  A.  K.  &  N.  Ry.  V.  McKinney.  124  Ga.  929. 

»  Mitfhell  V.  Warner,  5  Conn.  497;  Flaniken  v.  Neal,  67  Tex.  629; 
Tillotson  V.  Prichard,  GO  Vt.  94. 


Title  to  the  Farm  by  Deed  33 

the  covenant  for  peaceable  possession  ^  or  for  quiet  en- 
joyment.^ As  one  court  expressed  it,  whatever  else  it 
may  or  may  not  be,  a  covenant  of  general  warranty  in  a 
deed  is  a  covenant  against  eviction  running  with  the 
land.^  In  New  York,  however,  after  a  most  protracted 
litigation  embracing  four  appeals  to  the  court  of  last 
resort,  it  was  finally  adjudged  that  a  remote  grantee  of 
land  could  not  recover  damages  on  a  breach  of  a  covenant 
of  warranty  and  for  quiet  enjoyment  in  a  deed  to  his 
predecessor  in  title  by  the  husband  of  the  grantor  who 
had  joined  her  in  a  warranty  deed.  The  husband,  being 
himself  a  stranger  to  the  title,  was  not  privy  in  estate  to 
the  successive  grantees,  and  his  covenant  was,  therefore, 
held  to  have  been  a  personal  one  to  the  first  grantee  and 
not  to  run  v/ith  the  land."*  The  courts  are  not  agreed  as 
to  whether  covenants  of  seisin  do  or  do  not  run  with  the 
land.  In  the  United  States  Supreme  Court,*^  in  North 
Carolina  ^  and  Vermont,'^  they  are  thought  to  be  per- 
sonal covenants  merely;  while  in  Indiana,^  lowa,^  and 
Missouri  i"  they  are  held  to  run  with  the  land.  In  New 
York  ^^  and  Minnesota  ^"  covenants  against  encumbrances 

»  Schwallback  v.  C.  M.  &  St.  P.  R.  R.,  69  Wis.  292. 
2  Garrison  v.  Sandford,  12  N.  J.  L.  261 ;  Willard  v.  Worsham,  76  Va. 
392.  3  Wmiams  v.  O'Donnell,  225  Pa.  St.  321. 

<  Mygatt   V.    Coe,    124    N.    Y.  212;    142  id.   78;   147   id.   456;    152 
id.  457.  6  Le  j^oy  v.  Beard  and  Peters  v.  Bowman,  supra. 

^  Eames  v.  Armstrong,  146  N.  C.  1. 
'  Swasey  v.  Brooks,  30  Vt.  692. 
'  Coleman  v.  Lyman,  42  Ind.  289. 

'  Schofield  v.  Homestead  Co.,  32  Iowa,  317 ;   Boon  v.  McHenry,  55 
id.  202. 

"  Maguire  v.  Riggin,  44  Mo.  512 ;   Johnson  v.  Johnson,  170  id.  34. 
"  Geiszler  v.  De  Graaf,  166  N.  Y.  339. 
"»  Security  Bank  v.  Holmes,  65  Minn.  531. 
D 


34  Law  for  the  American  Farmer 

are  held  to  run  with  the  land,  but  this  is  not  so  in  Cali- 
fornia ^  and  Vermont.^ 

§  27.     Exceptions  and  reservations  in  deeds. 

The  words  "  excepting"  and  "  reserving  "  are  frequently 
used  synonymously,  or  at  least  without  discrimination 
in  deeds.^  In  a  strict  sense  a  reservation  in  a  deed  is 
something  created  out  of  the  thing  granted  which  had 
not  a  prior  existence,  such  as  an  easement;  while  an 
exception  is  some  existing  thing  kept  back  out  of  what  is 
granted.'*  The  exception  does  not  convey,  the  reserva- 
tion takes  back ;  ^  thus,  a  reservation  of  a  right  of  way 
in  a  deed  reserves  only  an  easement,  while  an  exception 
of  a  strip  of  land  traversed  by  a  right  of  way  withholds 
the  fee.^  The  books  call  attention  to  the  constant  mis- 
use of  the  terms  "  reservation"  and  "  exception,"  but  all 
the  cases  give  effect  to  a  clause  as  one  or  the  other,  accord- 
ing to  the  subject  matter  to  which  it  applies,  regardless 
of  the  word  used ;  ^  for  instance,  if  a  thing  is  really  ex- 
cepted from  a  conveyance,  mentioning  it  merely  as  re- 
served does  not  defeat  its  effect  as  an  exception.^ 
Examples  of  exceptions  are  the  setting  off  from  the  land 

>  McPike  V.  Heaton,  supra. 

*  Swasey  v.  Brooks,  supra. 

'  Martin  v.  Cook,  102  Mich.  267 ;  McAfee  v.  Arline,  83  Ga.  645 ; 
Stockbridge  Iron  Co.  v.  Hudson  I.  Co.,  107  Mass.  290. 

*  Winston  v.  Johnson,  42  Minn.  .398 ;  Cochcco  Mfg.  Co.  v.  Whittier, 
10  N.  H.  305;    MofFitt  v.  Lytic,  165  Pa.  St.  173. 

'  Pritchard  v.  Lewis,  125  Wis.  604 ;  Ammons  v.  Toothman,  59  W.  Va. 
165. 

*  Pritchard  v.  Lewis,  supra. 

'  Frank  v.  Myers,  97  Ala.  437. 

*  Eisea  V.  Adkins,  164  Ind.  580. 


Title  to  the  Farm  by  Deed  35 

conveyed  of  a  part  of  it  for  burial  purposes  with  the 
right  to  make  interments  there ;  ^  and  the  taking  out 
from  the  premises  conveyed  of  a  plot  of  land  of  certain 
stated  dimensions  for  a  way  to  the  grantor's  cellar.^ 
On  the  other  hand,  a  right  to  cut  timber  on  the  land 
granted,^  a  right  to  all  the  slabs  made  at  a  sawmill  con- 
veyed/ and  a  crossing  over  a  railroad  right  of  way  deeded  ^ 
are  each  and  all  reservations.  A  reservation  in  a  deed 
of  a  gate  or  passageway  about  five  feet  wide  reserves 
nothing  more  than  a  gate  or  passageway  of  sufficient 
width  for  convenient  use  suitable  for  the  purposes  of  the 
reservation.^  An  oral  reservation  of  a  barn  when  con- 
veying a  farm  is  useless;  it  will  not  prevent  the  title 
from  passing.''  If  one  intends,  when  conveying  a  farm, 
to  keep  the  growing  crops  himself,  he  should  take  pains 
to  except  them  in  his  deed  or  by  some  other  writing. 
An  oral  exception  of  this  sort  has,  indeed,  been  held  good,^ 
but  the  weight  of  judicial  authority  appears  to  be  against 
its  validity.^  The  identity  of  the  subject-matter  of  an 
exception,  for  instance,  that  a  well  excepted  was  located 
at  a  particular  place  in  the  tract  of  land  conveyed,  may 

1  Mitchell  V.  Thome,  134  N.  Y.  536. 

2  Mount  V.  Hambley,  22  Misc.  454. 

3  Blackman  v.  Striker,  142  N.  Y.  555 ;   Rich  v.  Zeilsdorff,  22  Wis.  544. 
*  Adams  v.  Morse,  51  Me.  497. 

^Knowlton  v.  N.  Y.,  N.  H.,  &  H.  R.  R.,  72  Conn.  188;  Biles  v. 
Tacoma,  O.  &  G.  H.  R.  R.,  5  Wash.  509. 

«  Atkins  V.  Bordman  (Mass.)  2  Mete.  457. 

7  Leonard  v.  Clough,  133  N.  Y.  292. 

«  Grabow  v.  McCracken,  23  L.  R.  A.  (N.  S.)  1218. 

'  Gibbons  v.  DilHngham,  10  Ark.  9  ;  Gam  v.  Cordrey,  4  Pennew.  143 ; 
Turner  v.  Cool,  23  Ind.  56 ;  Brown  v.  Thurston,  56  Me.  126 ;  Adams  v. 
Watkins,  103  Mich.  431 ;   Mcllvaine  v.  Harris,  20  Mo.  457. 


36  Law  for  the  American  Farmer 

be  proved  by  oral  testimony,^  It  is,  however,  said  to  be  a 
well-settled  principle,  declared  in  the  old  text-books  and 
coming  down  to  us  without  dissent  or  contrariety  of 
opinion  anywhere,  that  when  in  a  conveyance  complete 
and  perfect  in  itself  of  premises  well  identified  and  de- 
scribed there  is  embodied  an  exception  of  an  uncertain 
and  undefined  part  of  the  property  conveyed,  the  excep- 
tion is  void  for  uncertainty,  and  the  grant  is  good.^ 

1  Elsea  V.  Adkins,  supra. 
*  Frank  v.  Myera,  supra. 


CHAPTER  V 

THE   FARMER   IN   POSSESSION   OF  THE   FARM 

§§  28-34 

§  28.     Actual  and  constructive  possession. 

There  is  nowadays  little  if  any  difference  in  the  legal 
meaning  of  possession  and  seisin  of  land.^  To  possess 
land  is  to  occupy  it,^  —  to  hold  and  exercise  exclusive 
dominion  over  it.^  The  person  who  has  the  true  title 
to  unoccupied  land  is  in  constructive  possession  of  it.* 
Constructive  possession  is  a  fiction  of  law,  while  actual 
possession  is  a  tangible  fact.^  Actual  possession  is  a 
possession  in  fact,  really  and  absolutely,  as  opposed  to  a 
virtual,  constructive,  theoretical,  or  potential  possession.^ 
It  is  the  opposite  of  possession  in  law,  or  the  same  as 
what  is  called  pedis  possessio,  or  pedis  positio,  by  which 
is  meant  a  foothold  on  the  land  —  a  standing  upon  it,  an 
occupation  of  it  as  a  real  demonstrative  act  done.  It  is 
the  contrary  of  that  possession  in  law  which  is  termed 

J  Slater  v.  Rawson,  47  Mass.  439. 

«  Nathan  v.  Dierssen,  146  Cal.  63 ;   Evans  v.  Foster,  79  Tex.  48. 

8  Booth  V.  Small,  25  Iowa,  177. 

*  Richbourg  v.  Rose,  53  Fla.  173. 

»  Carey  v.  Cagney,  109  La.  77. 

«  Doty  V.  O'Neil,  95  Cal.  244. 

37 


48035 


38  Law  for  the  American  Farmer 

constructive  possession  and  which  follows  in  the  wake  of 
the  title. ^  Actual  possession  of  land  is  the  subjecting  of 
it  to  the  use  and  dominion  of  the  occupant.-  It  is  mani- 
fested by  visible  acts,  such  as  improvements,  inclosures, 
and  cultivation,  to  afford  absolute  and  exclusive  enjoy- 
ment to  the  possessor.^  It  is  such  a  possession  as  the 
character  and  situation  of  the  land  require,^  and  if  land 
is  occupied  and  used  as  it  is  adapted  to  be,  the  possession 
of  it  is  actual.^  Land  which  is  used  and  cultivated  by 
its  owner  is  actually  possessed  by  him  even  if  he  does 
not  reside  upon  it.^  And  one  who  goes  upon  timber  land 
and  makes  turpentine  year  after  year  has  been  held  to 
be  an  actual  possessor  of  it  as  against  the  constructive 
possession  of  the  owner  of  the  legal  title.'' 

§  29.     The  advantages  of  possession. 

There  are  several  advantages  which  the  occupant  of 
land  has  over  one  claiming  to  own  it  but  out  of  possession. 
The  occupant's  right  to  stay  may  be  dubious,  but  only 
one  who  has  a  superior  right  can  dislodge  him.  A  plaintiff 
in  ejectment  can  recover  only  upon  the  strength  of  his 
own  title  ;^  the  weakness  of  the  occupant's  title  is  no  help 
to  him.^     He  must  show  title  in  himself  and  cannot  rely 

»  Churchill  v.  Ondcrdonk,  59  N.  Y.  134 ;  Cutting  v.  Patterson,  82 
Minn.  375. 

*  Webber  v.  Clarke,  74  Cal.  11 ;    Gildchaus  v.  Whiting,  39  Kan.  706. 
'  Courtney  v.  Turner,  12  Nev.  345 ;   Pcndo  v.  Beakey,  15  S.  Dak.  344. 

*  Allaire  v.  Kctcham,  55  N.  J.  Eq.  168. 
'  Morrison  v.  Kelly,  22  111.  610. 

'  Lyons  v.  Andry,  106  La.  356. 

^  Richbourg  v.  Rose,  supra. 

«  King  V.  Mullins,  171  U.  S.  404;    McGuire  v.  Blount,  199  id.  142.1 

»  McNitt  V.  Turner,  16  Wall.  352 ;  Bigler  v.  Baker,  40  Neb.  325. 


The  Farmer  in  Possession  of  the  Farm       39 

on  the  defects  of  his  adversary's  title ;  ^  because  it  is  his 
right,  not  the  occupant's  wrong-doing,  that  is  the  ground 
of  recovery,^  On  the  other  hand,  the  mere  possession  of 
land  is  good  enough  evidence  of  ownership  against  any 
mere  trespasser,^  because  the  presumption  is  that  a  per- 
son in  possession  of  land  owns  it ;  ^  that  is,  the  law  pre- 
sumes every  possession  of  land  to  be  lawful  unless  it  is 
proved  to  have  commenced  and  continued  wrongfully.^ 
It  presumes  that  the  possessor  of  land  who  claims  to  own 
it  is  the  owner  of  it  unless  there  are  facts  or  circumstances 
to  prove  the  contrary.^  It  is  a  principle  of  law  also  that 
any  notice  sufficient  to  attract  one's  attention,  to  put 
one  upon  guard,  and  to  call  upon  one  to  make  inquiry,  is 
notice  as  well  of  everything  that  the  inquiry  would  have 
disclosed/  In  respect  of  another's  title  to  land,  one  is 
bound  equally  by  his  actual  knowledge  or  express  notice 
of  facts  and  by  circumstances  such  as  will  lead  to  knowl- 
edge by  the  exercise  of  due  diligence.^  Now,  the  pos- 
session of  land  is  notice  to  the  world  of  whatever  right 
or  title  the  occupant  has  to  it ;  ^  every  purchaser  of  occu- 
pied land  is  charged,  as  a  general  rule,  with  notice  of  the 
rights  and  equities  of  the  person  in  possession.^"    No  one 

1  stiff  V.  Cobb,  126  Ala.  381;    Hammond  v.  Shcpard,   186  111.  235; 
Wilson  V.  Leary,  120  N.  C.  90 ;  Illinois  Steel  Co.  v.  Bilot,  109  Wis.  418. 

2  Home  Fire  Ins.  Co.  v.  Barber,  67  Neb.  644. 

3  Campbell  v.  Rankin,  99  U.  S.  261. 

<  White  V.  White,  89  111.  460.  ^  Ricard  v.  Williams,  7  Wheat.  59. 

«  Morris  V.  U.  S.,  174  U.  S.  196 ;   Bradshaw  v.  Ashley,  180  id.  59. 

7  Shauer  v.  Alterton,  151  U.  S.  607. 

8  Simmons  Creek  Coal  Co.  v.  Doran,  142  U.  S.  417. 

9  Bridger  v.  Exch.  Bank,  126  Ga.  821. 

1"  May  V.  Sturdivant,  75  Iowa,  116;  Tate  v.  Pensacola  Gulf  Land  Co., 
37  Fla.  439  ;  Pleasants  v.  Blodgett,  39  Neb.  741 ;  Chapman  v.  Chapman, 
91  Va.  397. 


40  Law  for  the  American  Farmer 

can  be  an  innocent  purchaser  of  land  as  against  the  per- 
son in  possession/  even  if  there  is  no  record  of  the 
possessor's  rights,^  or  a  record  that  shows  title  in  an- 
other person.^    This  is  so  regardless  of  the  record.^ 

§  30.     The  nature  of  adverse  possession. 

Every  adverse  possession  begins  with  a  disseisin ;  ^ 
and  a  disseisin  is  a  wrongful  putting  out  from  his  free- 
hold of  one  who  is  seised.^  It  is  an  actual,  visible,  and 
exclusive  appropriation  of  land  begun  and  continued 
under  a  claim  of  right  either  openly  avowed  or  mani- 
fested by  the  conduct  of  the  disseisor.^  It  is  the  divest- 
ing of  the  landowner  of  his  seisin  and  the  substitution  of 
the  disseisor  in  his  place.^  Actually  taking  possession  of 
land  under  color  of  title  is  a  disseisin.^  Disseisin  differs 
somewhat  from  dispossession;  the  former  is  always  a 
wrongful  ouster,  but  the  latter  is  an  ouster  either  wTong- 
ful  or  rightful.^"  To  possess  land  adversely  is  to  occupy  it 
without  the  consent  of  its  legal  proprietor,^!  and  in  hos- 
tility to  the  legal  title.^^  Adverse  possession  is  a  posses- 
sion by  one  not  the  owner,  inconsistent  with  the  right  of 

«  Smith  V.  Reid,  134  N.  Y.  568 ;  Banks  v.  Allea,  127  Mich.  80. 

«  Turman  v.  Bell,  54  Ark.  273. 

'  Dennis  v.  Nor.  Pac.  R.  R.,  20  "Wash.  320. 

*  Doyle  V.  Teas,  5  III.  202. 

'  Little  V.  Libby,  2  Greenl.  242 ;   Springer  v.  Young,  14  Ore.  280. 

«  Mitchell  V.  Warner,  5  Conn.  497. 

'  Portis  V.  Hill,  3  Tex.  273 ;   Gildchaus  v.  Whiting,  supra. 

»  Clapp  V.  Bromagham.  9  Cow.  530 ;    M'Call  v.  Neely,  3  Watts,  69. 

•  Weston  I'.  Reading,  5  Conn.  255. 
'"  Slater  r.  Rawson,  supra. 

"  Bryan  v.  Atwater,  5  Day,  181. 
"  French  v.  Pearce,  8  Conn.  440. 


The  Farmer  in  Possession  of  the  Farm        41 

possession  of  the  true  owner.  ^  It  implies  that  it  com- 
menced in  wrong  and  is  maintained  against  right.^  It 
is  an  actual  appropriation  of  the  land  begun  and  con- 
tinued under  a  claim  of  right  hostile  to  another's  claim/ 
an  actual  occupation  of  land  as  one's  own.^  It  is  an 
unequivocal  assertion  by  the  occupant  of  land  of  title 
in  himself  when  he  really  has  none,  and  of  a  title  of  his 
own  exclusive  of  all  other  rights.^ 

§  31.     Adverse  possession  under  color  of  title. 

Color  of  title  as  a  foundation  of  an  adverse  possession  of 
land  has  distinct  advantages.  In  the  first  place  it  quite 
plainly  marks  the  beginning  of  the  adverse  possession  and 
fixes  with  some  certainty  the  time  when  the  statute  of 
limitations  commences  to  run  against  the  true  owner. 
In  the  next  place  it  extends  constructively  the  adverse 
possession  over  all  the  land  it  describes ;  ^  it  affords  the 
occupant  of  the  land  ground  for  claiming  possession  up  to 
the  boundaries  mentioned  or  traced  in  the  instrument 
which  constitutes  the  color  of  title.''  Color  of  title  is  the 
apparent  right  an  occupant  of  land  derives  from  his  paper 
title,  which  distinguishes  him  from  an  intruder  or  naked 
trespasser ;  ^  it  is  that  which  has  the  appearance  without 

1  Sheaffer  v.  Eakman,  56  Pa.  St.  144 ;  Faloon  v.  Simahauser,  130  111. 
649. 

2  Hunnewell  v.  Burchett,  152  Mo.  611. 

3  Stanley  v.  Schwalby,  147  U.  S.  508. 

*  Simmons  v.  Parsons  (S.  Car.),  2  Hill,  L.  492,  note. 

'  Sherry  v.  Frecking,  4  Duer,  452. 

«  Hornblower  v.  Banton,  103  Me.  375. 

'  Johnston  v.  Case,  131  N.  C.  491. 

8  Saltmarsh  v.  Crommelin,  24  Ala.  347. 


42  tjaw  for  the  American  Farmer 

the  reality  of  title  —  a  something  that  seems  to  be  title; 
but  really  is  no  title. ^  There  is  color  of  title  only  when 
there  is  some  sort  of  a  written  conveyance  which  purports 
to  transfer  an  estate  in  the  land.^  Any  paper  having  the 
looks  of  title  will  do  for  color  of  title.^  Any  writing  which 
describes  the  land  and  purports  to  convey  it  is  color  of 
title  although  it  is  invalid  and  conveys  none.'*  No  matter 
what  may  be  the  source  of  its  invalidity,  a  deed  which  pur- 
ports to  convey  land  and  which  in  form  does  so  is  color  of 
title ;  ^  for  color  of  title  does  not  depend  upon  the  effect  or 
validity  of  the  instrument  which  gives  the  color  but  wholly 
upon  its  intent  and  meaning."  Any  writing  which  serves 
to  define  the  extent  and  character  of  an  occupant's  claim 
to  land  with  parties  from  whom  and  to  whom  it  comes 
answers  for  color  of  title/  no  matter  how  imperfect  or 
defective  as  a  deed  it  may  be.^  Indeed,  a  deed  may  be 
wholly  void  because  made  pursuant  to  a  judicial  decree 
absolutely  void  and  yet  be  sufficient  as  color  of  title  to 
serve  the  purposes  of  an  adverse  possession.^  To  be  color 
of  title  it  is  only  necessary  for  the  writing  to  be  an  instru- 

1  Wright  V.  Mattison,  IS  How.  50 ;  Cameron  v.  U.  S.,  148  U.  S.  301 ; 
Bolden  v.  Sherman,  110  111.  418;  Erdman  v.  Corse,  87  Md.  506;  Dugan 
V.  Farrier,  47  N.  J.  L.  383  ;  Lindt  v.  Uihlein,  116  Iowa,  48 ;  Swift ».  Mulkey 
17  Ore.  532. 

»  Bloom  V.  Strauss,  70  Ark.  483 ;  Williamson  v.  Tison.  99  Ga.  792; 
Williams  v.  Scott,  122  N.  C.  545;  Wood  v.  Conrad,  2  S.  Dak.  334;  Al- 
drich  V.  Griffith,  66  Vt.  390 ;   MuUan  v.  Carper,  37  W.  Va.  215. 

'  Core  V.  Faupel,  24  W.  Va.  238. 

«  Allen  V.  Mansfield,  108  Mo.  343. 

»  Chi.  R.  I.  &  P.  K.  R.  V.  Allfree,  64  Iowa,  500. 

•  Hindley  v.  Manhattan  R.  R.,  185  N.  Y.  335. 

'  Burdcll  r.  Blain,  66  Ga.  169. 

»  Street  v.  Collier,  118  Ga.  470;    Randolph  v.  Casey,  43  W.  Va.  289. 

»  Hamilton  v.  Witner,  50  Wash.  689. 


The  Farmer  in  Possession  of  the  Farm       43 

ment  which  purports  to  convey  the  title,  but  that  is  an 
essential  feature  and  supremely  important.^  A  deed  can- 
not be  color  of  title  beyond  what  it  purports  to  convey .^ 
Color  of  title  should  not  be  confounded  with  claim  of  title; 
they  are  different  things.^  The  phrases  "color  of  title  " 
and  "claim  of  title"  are  not  equivalent  in  meaning;  to 
constitute  color  of  title  there  must  be  a  paper  title  of  some 
sort,  but  a  claim  of  title  may  rest  altogether  in  parol.* 
Nor  does  a  claim  of  title  necessarily  include  color  of  title.^ 

§  32.     Adverse  possession  hy  squatter. 

It  was  the  early  view  that  a  mere  trespasser  on  land 
without  color  of  title  could  not  hold  adversely  to  the  true 
owner.^  To  bar  the  legal  owner  of  his  title  to  land,  ac- 
cording to  a  recent  utterance  of  the  United  States  Supreme 
Court,  an  adverse  possession  needs  to  be  held  under  a 
claim  of  title,  in  hostility  to  the  true  title,  and  to  have 
been  open,  notorious,  exclusive,  continuous,  and  undis- 
turbed all  the  time  the  statute  of  limitations  was  running ;  ^ 
and  it  is  significant  that  in  the  case  in  which  this  was  said 
nothing  was  said  concerning  the  necessity  of  color  of  title. 
There  is,  it  has  been  asserted,  no  case  in  which  a  private 
person  owning  land  will  not  be  barred  by  another's  adverse 
possession  if  it  has  continued  for  the  full  period  of  the 

1  Deffeback  v.  Hawke,  115  U.  S.  407 ;  Coleman  v.  Billings,  89  111.  183  ; 
Converse  v.  Calumet  River  R.  R.,  195  id.  204. 

2  Woods  V.  Banks,  14  N.  H.  101 ;  Wells  v.  Jackson  Iron  Co.,  48  id.  491. 

3  Herbert  v.  Hanrick,  16  Ala.  581. 

*  Hamilton  v.  Wright,  30  Iowa,  480. 

8  Allen  V.  Mansfield,  supra. 

«  Jackson  v.  Huntington,  5  Pet.  402  ;   Harvey  v.  Tyler,  2  Wall.  328. 

'  Ward  V.  Cochran,  150  U.  S.  597. 


44  Law  for  the  American  Farmer 

statute  of  limitations.^  At  the  present  time  the  Ust  is  a 
long  one  of  cases  in  which  it  has  been  held  that  an  adverse 
possession  may  begin  by  a  naked  trespass  without  even  a 
pretense  of  color  of  title.  A  mere  intruder  or  squatter, 
who  takes  possession  of  land  as  his  own,  openly  and  no- 
toriously claiming  title  to  it,  and  excludes  everybody  else 
from  it,  if  left  unmolested  for  the  full  statutory  time,  will 
in  the  end  gain  a  title  by  prescription  to  all  the  land  he  has 
actually  occupied.^ 

§  33.     The  distinction  in  cases  of  adverse  possession  with 
and  without  color  oj  title. 

The  distinction  between  an  adverse  possession  under 
color  of  title  and  one  in  which  there  is  no  color  of  title  is 
universally  understood.  The  courts  refer  to  it  as  well 
settled,  important,  undoubted,  well  marked,  and  widely 
recognized.  And  they  refer  to  it  also  as  the  only  difference 
in  the  two  kinds  of  adverse  possession.  Concisely  stated, 
the  distinction  is  this:  A  possession  under  color  of  title 
when  it  is  actual  as  to  a  part  of  the  land  is  constructive  as 
to  the  rest  of  it ;  that  is,  a  possession  under  color  of  title, 
when  any  part  of  the  land  described  in  the  instrument 
which  gives  the  color  is  actually  occupied  by  the  claimant 
under  it,  constructively  covers  the  whole  of  it  except  in  so 
far  as  it  may  happen  to  be  actually  occupied  by  some  one 
else.     On  the  other  hand,  a  possession  without  any  color 

'  Portia  V.  Hill,  supra;  Drayton  v.  Marshall,  Rice's  Eq.  373. 

«  Lucy  V.  Tcnn.  &  C.  R.  R.,  92  Ala.  246 ;  McClellan  v.  Kellogg,  17  111. 
498;  Campau  v.  Dubois,  39  Mich.  274;  Swan  v.  Munch,  65  Minn.  500; 
Swope  V.  Ward,  185  Mo.  316  ;  Rosa  v.  Mo.,  K.  &.  T.  R.  R.,  18  Kan.  124; 
Keefe  v.  Bramhall,  3  Mackey,  551. 


The  Farmer  in  Possession  of  the  Farm       45 

of  title  —  the  squatter's  sovereignty,  so  to  speak  —  never 
extends  a  single  inch  beyond  the  ground  actually  occupied 
—  the  land  under  foot,  as  it  is  termed.  It  embraces  the 
soil  dwelt  upon,  cultivated,  inclosed,  used,  and  it  includes 
nothing  beyond.^ 

§  34.     The  intent  in  holding  adversely. 

He  who  would  acquire  by  prescription  title  to  land  must 
entertain  and  cherish  an  intention  to  claim  its  ownership. 
There  cannot  be  an  adverse  possession  where  there  is  no 
intention  to  claim  ownership.^  If,  for  instance,  a  farmer 
should  occupy  land  up  to  a  certain  fence  in  the  belief 
that  such  fence  was  on  the  true  line  between  him  and 
his  neighbor  when  the  fence  was  in  fact  entirely  beyond 
and  altogether  on  his  neighbor's  land,  but  honestly  intend- 
ing all  the  time  to  claim  only  what  belonged  to  him  and 
never  intending  to  claim  any  of  his  neighbor's  land,  he  will 
not  be  in  adverse  possession,  because  the  intention  to 
claim  ownership  is  wanting.^  Merely  occupying  another's 
land  by  mistake  or  inadvertence  up  to  a  supposed  but 
misplaced  line  fence  is  no  disseisin.^  But  if  a  landowner 
occupies  his  land  up  to  a  certain  fence  in  the  mistaken 
belief  that  it  stands  on  the  true  boundary  line  between 

»  Chastang  v.  Chastang,  141  Ala.  451 ;  Roots  v.  Beck,  109  Ind.  472 ; 
Campau  v.  Campau,  44  Mich.  31;  Foulke  v.  Bond,  41  N.  J.  L.  527; 
Anderson  v.  Burnham,  52  Kan.  454 ;  Sumner  v.  Blakslee,  59  N.  H.  243 ; 
Humphries  v.  Huffman,  33  Ohio  St.  395 ;  Turpin  v.  Brannon,  3  M'Cord, 
L.  261 ;  Collins  v.  Hipshire,  2  Swan,  109 ;  Whitehead  v.  Foley,  28  Tex. 
268 ;  Creekmur  v.  Creekmur,  75  Va.  430 ;  M'Call  v.  Neely,  supra;  Max- 
well V.  Cunningham,  50  W.  Va.  298. 

2  Hess  V.  Rudder,  117  Ala.  525. 

''Ibid. 

*  Winn  V.  Abeles,  35  Kan.  85. 


46  Law  for  the  American  Farmer 

him  and  the  next  owner,  and  all  the  time  claims  and  means 
to  claim  as  his  own  all  the  land  on  his  side  of  the  fence, 
whether  the  fence  is  on  the  line  or  not,  then  his  possession 
is  hostile  and  adverse  to  his  neighbor's  title;  and  if  it 
persists  without  hindrance  long  enough  will  ultimately 
give  him  title  up  to  the  fence. ^  The  encroachment,  how- 
ever, as  has  been  said,  of  one  landowner  on  his  neighbor's 
land  because  he  is  confused  and  uncertain  about  the  loca- 
tion of  the  division  line  is  not  an  adverse  possession.^ 

1  Preble  v.  Maine  Cent.  R.  R.,  85  Me.  260. 
*  King  V.  Brigham,  23  Ore.  262. 


CHAPTER  VI 

THE  farm:  its  extent,  area,  and  components 

§§  35-38 
§  35.     What  a  farm  is. 

The  word  "farm "  is  one  of  wide  meaning ;  circmnstances 
and  the  intention  of  those  who  deal  respecting  any  given 
farm  have  much  to  do  in  determining  what  it  includes  in 
any  particular  case.^  The  word  is  indefinite  and  somewhat 
ambiguous.^  At  times  it  is  necessary  to  prove  by  oral 
testimony  just  what  land  is  included  in  what  is  called  a 
farm.^  A  farm  generally  means  an  area  of  land  under 
single  ownership  and  devoted  to  agriculture  —  either  to 
raising  crops  or  for  pasturage;  it  may  consist  of  any 
number  of  acres  —  of  one  field  or  many  fields;  it  may  lie 
wholly  in  one  township  or  county  or  in  more  than  one; 
it  has  no  necessary  relation  to  the  political  subdivisions 
of  the  county.^  A  farm  is  not  necessarily  inclosed  land;^ 
it  is  simply  an  area  of  land  under  a  single  control  devoted 
to  cultivation,  and  it  may  be  large  or  small  and  consist  of  a 
single  tract  or  be  made  up  of  a  number  of  parcels.^    There 

1  Riddle  v.  Littlefield,  53  N.  H.  503. 

2  Doolittle  V.  Blakesley,  4  Day,  265. 

3  Locke  V.  Rowell,  47  N.  H.  46. 

<  Rogers  v.  Caldwell,  142  111.  434. 
^  Finley  v.  Langston,  12  Mo.  124. 
»  Drake's  case,  114  Fed.  229. 
47 


48  Law  for  the  American  Farmer 

is  nothing  commonly  or  popularly  understood  by  the  word 
"farm"  which  contravenes  the  idea  that  the  parts  which 
compose  it  must  necessarily  adjoin  one  another  or  be  ad- 
jacent to  each  other ;  nothing  which  precludes  the  separa- 
tion of  one  part  of  the  farm  from  the  rest  by  a  considerable 
distance  so  as  to  prevent  the  whole  from  being  considered 
as  one  entire  farm.^ 

§  36.     The  extension  of  the  farm. 

Land  fit  for  cultivation  has  been  defined  in  one  case  as 
land  in  such  a  natural  state  of  soil  that  a  farmer  of  reason- 
able skill  and  knowledge  can  regularly  and  annually,  by 
tilling  it,  raise  upon  it  grain  and  other  staple  crops ;  ^  and  the 
surface  of  land,  in  another  case,  as  that  part  of  it  which 
is  used  for  agricultural  purposes.^  As  a  matter  of  course, 
then,  a  farm  extends  over  the  surface  of  the  earth  fit  for 
cultivation  and  circumscribed  by  its  metes  and  bounds. 
It  covers  all  the  ground,  soil,  and  earth  whatever.'*  Later- 
ally it  extends  to  its  boundary  lines,  and  when  one  of  these 
is  a  highway  or  an  unnavigable  stream  of  water,  unless 
the  deed  has  otherwise  provided,  and  generally  where  the 
common  law  prevails,  the  farm  extends  to  the  middle  of 
the  road  and  the  thread  of  the  stream.^  If  the  farm  is 
on  the  sea-shore  or  is  bordered  by  navigable  waters  in 

1  Bell  V.  Woodward,  46  N.  H.  333. 

2  Keeran  v.  Griffith,  34  Cal.  580. 

'  Murray  v.  Allred,  100  Tenn.  100 ;  Williams  v.  So.  Penn.  Oil  Co., 
52  W.  Va.  181. 

*  Mitchell  V.  Warner,  5  Conn.  497. 

*  Banks  v.  ORdon,  2  Wall.  ,57  ;  Hardin  v.  Jordan,  140  U.  R.  371  ;  Fried- 
man V.  Snare  &  T.  Co.,  71  N.  J.  L.  005 ;  Ilealey  v.  Bahliitt,  14  R.  I.  533 ; 
Morrow  v.  Willard,  30  Vt.  118;   Mariner  v.  Schulte,  13  Wis.  693. 


The  Farm:  its  Extent,  Area,  and  Components    49 

which  the  tides  ebb  and  flow,  it  stops  at  the  water's  edge  — 
highwater  mark ;  ^  that  is,  at  common  law  and  wherever 
the  common  law  prevails.^  The  rule  applies  also  to  large 
rivers  and  great  lakes.^  A  farm  also  in  the  eye  of  the  law 
extends  from  the  surface  of  the  ground  indefinitely  upward 
to  the  sky  above  and  downward  to  the  center  of  the  earth.* 

§  37.     The  area  of  the  farm. 

If  the  farm  is  described  in  the  conveyance  by  metes 

and  bounds,  the  use  of  the  general  phrase  "containing 

acres  "  does  not  amount  to  a  warranty  of  quantity.^  When 
land  is  sold  as  of  a  stated  acreage  or  dimension,  more  or 
less,  and  it  turns  out,  when  accurately  surveyed,  to  be 
either  a  little  larger  or  a  little  smaller  in  area,  the  seller  can 
claim  no  additional  compensation  for  any  excess  nor  the 
buyer  any  reduction  in  price  for  a  deficit.^  The  words 
more  or  less  in  such  case  are  words  of  qualification,  and  the 
conveyance  is  well  satisfied  by  about  the  number  of  acres 
mentioned.^  Those  words  are  words  of  safety  and  pre- 
caution to  cover  slight  and  unimportant  errors  and  in- 
accuracies in  surveying.^     The  buyer  takes  the  chances 

1  Barney  v.  Keokuk,  94  U.  S.  324 ;   Shively  v.  Bowlby,  152  id.  1. 

2  U.  S.  V.  Pacheco,  2  WaU.  587. 

»  Revell  V.  Peo.,  177  111.  468;   Peo.  v.  Silberwood,  110  Mich.  103. 

*  Smith  V.  Atlanta,  92  Ga.  119 ;  U.  S.  Pipe  Line  Co.  v.  D.  L.  &  W.  R.  R., 
62  N.  J.  L.  254 ;  Mott  y.  Palmer,  1  N.  Y.  564 ;  Winton  v.  Cornish,  5 
Ohio,  477;  Erickson  v.  Crookston  W.  Wks.,  P.  &  Lt.  Co.,  105  Minn.  182. 

6  Andrews  v.  Rue,  34  N.  J.  L.  402  ;  Rickets  v.  Dickens,  5  N.  C.  343  ; 
Russell  V.  Keeran,  8  Leigh,  9. 

6  Melick  21.  Dayton,  34  N.  J.  Eq.  245 ;  Frenche  v.  Chancellor,  51  id. 
624. 

'  Hodges  V.  Rowing,  58  Conn.  12. 

«  Oakes  v.  De  Lancey,  133  N.  Y.  227 ;  Crislip  v.  Cain,  19  W.  Va.  438. 


50  Law  for  the  American  Farmer 

of  minor  shortages  if  the  vendor  acts  in  good  faith. ^  The 
words  ''more  or  less"  will  not  cover  a  large  surplus  or  de- 
ficiency ;  if  the  difference  is  very  considerable,  rehef  will 
be  afforded  to  him  who  suffers  from  it.^  If  the  deficiency 
is  very  great,  deceit  or  a  mistake  which  amounts  to  a  fraud 
is  inferred.^  The  variation  ought  not  to  exceed  ten  or 
fifteen  per  centum  at  the  outside,^  Value  has  much  to 
do  with  the  matter,  a  shortage  of  ten  acres  in  a  tract  sup- 
posed to  contain  one  hundred  and  sixty-six  acres  where 
land  is  worth  fifty  dollars  an  acre,^  or  a  deficiency  of  five 
and  a  quarter  acres  of  land  worth  fifty  five  dollars  an  acre^ 
in  a  contract  to  convey  "  about  one  hundred  and  forty 
acres,"  are  each  too  great  to  be  covered  by  the  phrase 
"more  or  less."  A  deed  of  a  tract  of  land  definitely 
identified;  and  said  to  be  about  a  certain  number  of 
chains  and  links  in  depth,  conveys  the  whole  tract, 
although  it  is  in  fact  a  few  links  deeper.^ 

§  38.     0/  what  the  farm  is  composed. 

In  the  term  "land"  is  embraced  any  part  of  the  surface 
of  the  earth  that  can  be  held  as  individual  property, 
whether  soil  or  rock  or  ground  under  water,  and  also  every- 
thing annexed  to  it  either  by  nature  or  the  hand  of  man ;  ^ 
thus  it  includes  trees,  grass,  water,  buildings,  and  fences.^ 

1  Tyler  v.  Anderson,  106  Ind.  185 ;  Tyson  v.  Hardesty,  29  Md.  305. 

2  Harrison  v.  Talbot,  32  Ky.  258 ;   Gentry  v.  Hamilton,  38  N.  C.  376. 
'  Wylly  V.  Gazan,  69  Ga.  506. 

*  Fannin  v.  Bellomy,  68  Ky.  663.      '  Triplett  v.  Allen,  26  Gratt.  721. 
«  Stevens  v.  McKnight,  40  Ohio  St.  341. 

1  White  V.  Woodruff,  24  N.  J.  L.  753. 

8  Conn.  Mut.  L.  Ins.  Co.  v.  Wood,  115  Mich.  444. 

•  Harder  v.  Plass,  67  Hun,  540. 


The  Farm:  its  Extent,  Area,  and  Components    51 

Gravel  and  sand  in  their  native  beds  are  real  estate.' 
Land  spoken  of  as  a  subject  of  ownership  includes  land 
covered  by  water,^  and  water-power  both  used  and  unused.^ 
Land  includes  standing  timber,  for  growing  trees  are  a 
part  of  the  land  upon  which  they  grow.^  While  they  re- 
main rooted  in  the  ground,  growing  grasses,  both  wild 
and  cultivated,^  growing  crops,^  fruit  trees  and  their 
fruits,  and  perennial  bushes,  shrubs,  and  other  plants  "^  are 
all  part  of  the  soil.  Manure  accumulated  on  a  farm  in  the 
usual  course  of  husbandry  is  a  part  of  the  farm  and  goes 
with  it  when  it  is  deeded  or  descends  to  an  heir  or  devisee.* 
As  the  ownership  of  land  extends  downward  to  the  center 
of  the  earth  and  upward  to  the  sky,  the  minerals  lying 
underneath  the  farm,  —  petroleum,^  natural  gas,'^  and 
coal  and  iron,^'  —  and  meteorites  that  fall  from  the  sky,'^ 
all  belong  to  the  landowner  and  constitute  a  part  of  his 

1  Glencoe  Land  Co.  v.  Hudson  Bros.  Com.  Co.,  138  Mo.  439. 

2  Hardin  v.  Jordan,  140  U.  S.  371. 

3  Kimberly  &  C.  Co.  v.  Hewitt,  75  Wis.  371. 

4  Gulf  Red  Cedar  Lum.  Co.  v.  O'Neal,  131  Ala.  117;  Balkcom  v. 
Empire  Lum.  Co.,  91  Ga.  651 ;  Fox  v.  Pearl  Riv.  Lum.  Co.,  80  Miss.  1  ; 
Kingsley  v.  Holbrook,  45  N.  H.  313 ;  Gulf,  C.  &.  S.  F.  R.  R.  v.  Foster, 
44  S.  W.  198. 

6  Smith  V.  Leighton,  38  Kan.  544. 

6  Bagley  v.  Columbus  So.  Ry.,  98  Ga.  626 ;  Sullens  v.  Chic.  R.  I.  &  P. 
Ry.,  74  Iowa,  659. 

'  Sparrow  v.  Pond,  49  Minn.  412. 

8  Fay  V.  Muzzey,  79  Mass.  53  ;  Collier  v.  Jenks,  19  R.  I.  137. 
'  Brown  v.  Spilman,  155  U.  S.  665 ;    Williamson  v.  Jones,  39  W.  Va. 
231 ;  Kelley  v.  Ohio  Oil  Co.,  57  Ohio  St.  317  ;  Swaynew.  Long  Acre  Oil  Co., 
98  Tex.  597. 

1"  Peo.  Gas  Co.  v.  Tyner,  131  Ind.  277. 

'1  Stoughton's  Appeal,  88  Pa.  St.  198 ;    Williamson  v.  Jones,  supra. 
12  Goddard  v.  Winchell,  86  Iowa,  71 ;  Maas  v.  Amana  Soc,  16  Alb.  L. 
Jour.  76. 


52  Law  for  the  American  Farmer 

land.  Oil  and  gas  in  the  earth  indeed,  unlike  the  solid 
minerals,  cannot  be  owned  separately  from  the  overlying 
soil.^  It  is  an  old  maxim  of  the  law  that  whatever  is 
affixed  to  the  soil  belongs  to  the  soiP  and  so  all  structures — 
dwellings,  stables,  barns,  fences,  and  other  buildings,  are 
parts  and  parcels  of  the  farm,  styled  fixtures.  The  common 
law  rule  that  whatever  is  once  annexed  to  the  freehold 
becomes  a  part  of  it  is  insisted  upon  more  strongly  between 
executor  and  heir  in  favor  of  the  heir;  somewhat  less 
strongly  as  between  a  life  tenant  and  the  remainderman, 
and  still  less  as  between  landlord  and  tenant  in  favor  of 
the  tenant.^ 

1  Watford  Oil  &  Gas  Co.  v.  Shipman,  233  111.  9. 

*  Broom's  Leg.  Maxim,  299. 

1  Van  Ness  v.  Pacard,  2  Pet.  137. 


CHAPTER  VII 

THE   BOUNDARIES   OF  THE   FARM 

§§39-46 

§  39.     The  existence  and  recognition  of  the  boundary. 

It  is  a  rule  of  the  common  law  which  attaches  to  the 
ownership  of  land  wherever  man's  private  ownership 
in  real  property  is  admitted,  that  every  one's  domain  is 
inclosed  by  a  boundary  either  visible  or  invisible  —  a 
material  hedge,  fence,  or  wall,  or  an  ideal  and  unseen 
barrier,  and  that  every  unwarrantable  intrusion  on  the 
ground  within  by  a  person  or  his  cattle  is  a  trespass  by  break- 
ing the  close :  this  rule  is  no  arbitrary  regulation,  but  is 
incidental  to  the  ownership  of  the  land.^  If  one  selling  a 
farm  points  out  its  boundaries  to  the  purchaser  where  they 
are  not  visibly  indicated  and  marked,  he  will  be  liable 
to  make  good  any  deficiency  if  the  true  Hnes  turn  out  to 
be  within  the  boundaries  he  has  pointed  out,  but  not  if  he 
merely  expresses  his  opinion  or  beUef  as  to  the  location  of 
the  lines,  although  he  proves  to  be  mistaken.^  If  the  seller 
knows  where  the  true  lines  are  and  falsely  misrepresents 
their  location,  he  is  guilty  of  a  fraud  on  the  buyer  ;3  but 

>  Bileu  V.  Paisley,  18  Ore.  47. 
2  Odell  V.  Story,  116  N.  W.  269. 

'  Clark  V.  Baird,  9  N.  Y.  196 ;  Schwenk  v.  Naylor,  102  id.  683 ;  Har- 
low  V.  Green,  34  Vt.  379. 

53 


54  Law  for  the  American  Farmer 

if  he  is  honest  in  his  belief,  but  mistaken,  it  is  no  fraud.* 
Every  one  is  bound  to  know  the  boundaries  of  his  own  land, 
and  none  can  defend  a  charge  of  trespassing  upon  adjoin- 
ing land  by  alleging  his  ignorance  of  the  true  boundary 
line.2 

§  40.     Running  the  lines. 

In  locating  lands  described  in  a  deed,  it  is  a  general  rule 
that  natural  objects,  such  as  mountains,  lakes,  rivers, 
creeks,  rocks,  etc.,  called  for,  control  artificial  objects, 
such  as  marked  lines,  stakes,  blazed  trees,  stone-piles,  etc. ; 
that  artificial  objects  or  monuments,  so  called,  control 
courses  and  distances ;  that  courses  control  distances ;  and, 
finally,  that  both  courses  and  distances  control  quantities.' 
All  visible  marks  or  indicators  upon  natural  or  artificial 
objects  which  show  the  fines  or  boundaries  of  a  survey 
of  land  are  monuments.^  When  there  are  defined  mon- 
uments, errors  in  the  courses  in  a  description  of  land  in 
a  conveyance  are  disregarded.^  So,  also,  of  mistakes  as 
to  distances ;  thus,  when  a  line  is  stated  in  a  deed  as  about 
a  certain  number  of  poles  long  to  a  named  river,  it  extends 
to  the  river,^  and  when  a  fine  is  given  as  about  a  certain 
number  of  feet  in  length  enchng  in  a  monument,  it  extends 
to  the  monument  unless  no  monument  can  be  located.'' 

1  Stow  V.  Bozeman,  29  Ala.  397 ;  Hall  v.  Thompson,  1  Smed.  &  M.  443. 

2  Little  Pittsburg  Consol.  Min.  Co.  v.  Little  Chief  Consol.  Min.  Co., 
11  Colo.  223. 

»  Ayers  v.  Watson,  113  U.  S.  594. 

*  Grier  v.  Penn'a  Coal  Co.,  128  Pa.  St.  79. 

6  Higuera  v.  U.  S.,  5  Wall.  827. 

«  Purinton  v.  Sedgley,  4  Greenl.  283. 

1  Cutts  V.  King,  5  id.  482. 


The  Boundaries  of  the  Farm  55 

But  although  monuments  called  for  in  a  conveyance  of 
land  generally  prevail  over  the  courses  given,  they  yield 
where  adhering  to  them  would  defeat  the  deed,  and  the 
courses  and  distances  given  inclose  the  land.^  If  a 
course  and  distance  on  one  side  is  missing  in  a  conveyance 
of  land,  the  other  courses  and  distances  should  be  run  and 
their  ends  united  by  a  Hne  inclosing  the  land.- 

§  41,     Inclosing  the  farm. 

To  be  inclosed,  land  must  be  shut  in  on  all  sides,^  and 
it  is  inclosed  when  it  is  entirely  surrounded  by  a  fence.^ 
The  legislature  exercising  the  police  power  may  require 
every  man  to  inclose  his  land  and  deny  him  any  remedy 
for  the  trespasses  of  cattle  if  he  does  not  do  so.^  Such 
statutes  are  constitutional  ^  and  many  states  have  enacted 
them.  If  a  landowner  neglects  in  states  where  such 
statutes  are  in  force  to  inclose  his  land  by  a  fence  strong 
enough  and  tight  enough  to  keep  out  cattle  not  ordinarily 
disposed  to  break  fences,  he  can  recover  no  damages  for 
the  trespasses  of  cattleJ  In  the  graphic  language  of  the 
farm,  fences  should  be  "bull-strong,  pig-tight  and  horse- 
high."  The  test  of  a  lawful  fence  for  the  restraint  of 
stock  is  its  state  at  the  place  where  the  stock  pass  through 
or  over  it,  and  the  fact  that  it  was  not  high  enough  at 

1  White  V.  Luning,  93  U.  S.  514. 
«  McEwen  v.  Den,  24  How.  242. 
»  U.  P.  R.  R.  V.  Harris,  28  Kan.  206. 

*  Kimball  v.  Carter,  95  Va.  77  ;  Haynie  v.  State,  75  S.  W.  24. 
'  Bileu  V.  Paisley,  supra;  Clarendon  Land  Co.  v.  McClelland  Bros., 
89  Tex.  483. 

«  Poindexter  v.  May,  98  Va.  143. 

^  Clarendon  Land  Co.  v.  McClelland  Bros,  supra. 


56  Law  for  the  American  Farmer 

another  place  or  that  somewhere  else  a  gate  in  it  was  left 
open  is  of  no  consequence  if  it  was  all  right  at  the  place 
where  the  animals  crossed  it.^  A  landowner  is  not  re- 
quired to  fence  against  cattle  that  are  wi'ongfully  on  ad- 
joining land,  hence,  he  may  recover  damages  caused  by 
stock  which  escape  from  control  while  being  driven  along 
the  highway  and  cross  intervening  unf  enced  land  to  trespass 
on  his  uninclosed  land.^  Neither  is  he  under  any  ob- 
ligation to  fence  his  land  to  prevent  trespassing  animals 
injuring  themselves,  and  so  he  is  not  liable  for  damages 
when  animals  trespass  on  his  uninclosed  land  and  are 
injured  in  a  pitfall  there.^  If,  however,  a  landowner  puts 
up  a  barbed  wire  fence  without  stretching  the  wires  taut, 
he  is  negligent  and  liable  for  injuries  suffered  by  beasts 
.which  get  entangled  in  the  loose  and  hanging  wires.^ 

§  42.     Division  fences. 

A  division  fence  is  a  fence  which  separates  the  contiguous 
lands  of  adjoining  owners.^  The  owners  of  adjoining 
lands  divided  by  a  fence  which  they  mistakenly  suppose 
to  be  upon  the  true  line  between  them,  and  who  only  claim 
title  up  to  the  true  division  line  wherever  it  may  be,  must 
conform  to  the  true  line  when  it  is  discovered  and  traced.^ 
All  that  a  landowner  is  called  upon  to  do  regarding  the 
keeping  up  of  a  common  division  line  fence  is  to  be  as  careful 
as  prudent  men  generally  are ;  he  is  not  bound  to  provide 

1  Montgomery  v.  Glasscock,  121  S.  W.  668. 

2  Wood  V.  Snider,  187  N.  Y.  28. 

3  St.  L.,  I.  M.  &  S.  Ry.  V.  Ferguson,  57  Ark.  16. 
*  Loveland  v.  Gardner,  79  Cal.  317. 

6  Hoar  V.  Hennessy,  29  Mont.  253. 
6  Battner  v.  Baker,  108  Mo.  311. 


The  Boundaries  oj  the  Farm  57 

against  extraordinary  gales  of  wind  and  tempests  which 
he  could  not  reasonably  have  expected ;  ^  nor  is  he  liable 
for  the  dangerous  condition  of  such  part  of  the  hne  fence  as 
by  contract  with  his  neighbor  it  was  the  latter's  duty  to 
maintain.2  It  is  no  trespass  for  one  of  two  adjoining 
landowners  to  hang  his  property  on  the  division  fence 
even  where  it  was  built  by  the  other  one.^  When  a  land- 
owner knows  or  has  the  means  of  knowing  where  the  true 
division  line  is  between  him  and  his  neighbor,  he  has  no 
right  to  rely  upon  a  division  fence  as  marking  the  line,  where 
it  was  built  in  recent  years  by  mistake  of  his  neighbor.^ 

§  43.     Settling  disputed  division  lines. 

The  law  has  always  favored  the  settlement  of  disputes 
and  avoidance  of  litigation.  The  compromise  and  settle- 
ment of  a  dispute  always  afford  a  sufficient  consideration 
for  a  promise  or  to  support  a  contract ;  but  it  is  essential 
that  there  be  a  real  dispute, — an  honest  controversy,  —  as 
otherwise  there  is  nothing  to  compromise.  There  must 
be  mutual  concessions ;  each  side  must  give  up  something 
for  the  sake  of  peace.^  An  honest  belief  by  both  parties  to 
a  controversy  that  the  outcome  of  it  is  doubtful  makes  it 
a  proper  subject  for  a  valid  compromise  whatever  may  be 
the  real  merits  on  either  side.^  An  unascertained  or  dis- 
puted boundary  hne  between  adjoining  lands  may  be 
established  by  the  respective  owners,  by  their  written 

'  Quinn  v.  Crimmings,  171  Mass.  255. 
« Ibid. 

*  Hannabalson  v.  Sessions,  116  Iowa,  457. 

4  Cottrell  V.  Pickering,  10  L.  R.  A.  (N.  S.)  404. 
6  Silander  v.  Gronna,  15  N.  Dak.  552. 

•  Smith  V.  Farra,  21  Ore.  395 ;    Galusha  v.  Sherman,  105  Wis.  263. 


58  Law  for  the  American  Farmer 

contract;  by  their  oral  agreement  accompanied  by  their 
actual  possessions  up  to  the  agreed  line  on  the  respective 
sides ;  and  by  their  acts,  declarations,  and  acquiescence  dur- 
ing a  limited  period  prescribed  by  statute.^  Twenty  years' 
occupation  under  an  oral  agreement  settling  a  disputed 
boundary  gives  a  title  by  adverse  possession.^  An  agree- 
ment settling  a  boundary  line  may  be  proved  by  circum- 
stances and  recognition  by  and  conduct  of  the  parties.^ 
Oral  agreements  of  this  kind  have  many  times  been  de- 
clared valid  when  definite  in  terms  and  immediately  carried 
out.*  Oral  agreements  settling  doubtful  and  disputed 
division  lines  are  upheld  upon  the  idea  that  the  parties  to 
them  do  not  undertake  to  acquire  and  pass  title  to  real 
estate,  which  can  only  be  done  by  written  contract  or 
conveyance ;  but  that  they  simply  fix  and  determine  by 
agreement  the  situation  and  location  of  what  each  already 
owns,  —  that  their  purpose  is  merely  by  their  agreement  to 
identify  their  respective  holdings  and  to  make  certain  what 
they  have  regarded  theretofore  as  uncertain.^  Agreements 
of  this  character  depend  for  their  validity  upon  the  fact 
that  the  true  line  is  unknown  definitely  and  the  division 
doubtful,  uncertain,  and  in  dispute;^  if  both  adjoining 
owners  know  the  location  of  the  true  dividing  line  between 
them,  an  oral  agreement  laying  it  out  elsewhere  is  void.' 

1  Osteen  v.  Wynn,  131  Ga.  209.         «  Boyd  v.  Graves,  4  Wheat.  513. 

3  Galbraith  v.  Lunsford,  87  Tenn.  89. 

<  Watrous  v.  Morrison,  33  Fla.  261 ;  Jones  v.  Pashby,  67  Mich,  459 ; 
Diggs  V.  Kurtz,  132  Mo.  250 ;  Strickley  v.  Hill,  22  Utah,  257 ;  Teass  v. 
St.  Albans.  38  W.  Va.  1.  '  Lecomte  v.  Toudouze,  82  Tex.  208. 

6  Terry  v.  Chandler,  16  N.  Y.  354 ;   Hartung  v.  Witte,  59  Wis.  285. 

'  Vosburgh  v.  Teator,  32  N.  Y.  561 ;  Gilchrist  v.  McGee,  9  Yerg.  455  ; 
Lewis  V.  Ogram,  149  Cal.  505. 


The  Boundaries  of  the  Farm  59 

§  44.     Trees  on  and  near  division  lines. 

Trees  standing  on  a  boundary  line  belong  to  the  respec- 
tive owners  of  both  sides  as  tenants  in  common/  and  al- 
though it  was  asserted  in  one  case^  that  when  a  tree  stands 
on  a  boundary  line  the  landowner  on  either  side  has  a 
right  to  lop  off  limbs  and  roots  on  his  side  close  to  the 
trunk,  yet  it  has  been  more  reasonably  declared  in  several 
other  cases  that  neither  owner  may  destroy  a  boundary 
line  tree  without  the  other's  consent,^  and  if  he  does,  the 
other  owner  may  recover  damages  against  him.^  A  fruit 
tree  growing  several  feet  from  a  division  line  belongs  ex- 
clusively and  wholly  to  the  owner  of  the  surface  soil  out 
of  which  the  trunk  issues  although  its  roots  below  and 
branches  above  the  surface  extend  across  the  line.-^  A 
landowner  does  not  own  fruit  growing  on  the  branches 
which  overhang  his  land  of  a  tree  standing  entirely  on 
his  neighbor's  ground  ;^  he  has  no  right  to  gather  the  fruit 
from  such  branches,  but  if  they  are  a  nuisance  to  him,  he 
may  lop  them  off,''  especially  after  giving  notice  of  his 
purpose  to  the  owner  of  the  tree.^  For  example,  a  rail- 
road company  has  a  right  to  lop  off  the  limbs  of  trees  that 
overhang  its  right  of  way  and  are  so  low  as  to  strike  and 
injure  its  servants  when  on  the  tops  of  cars  moving  along 

1  Musch  V.  Burkhardt,  83  Iowa,  301 ;  Robinson  v.  Clapp,  67  Conn. 
638 ;   Dubois  v.  Beaver,  25  N.  Y.  123 ;   Griffin  v.  Bixby,  12  N.  H.  454. 

*  Robinson  v.  Clapp,  supra. 

3  Harndon  v.  Stultz,  100  N.  W.  329. 

*  Dubois  V.  Beaver  and  Griffin  v.  Bixby,  supra. 

'  Skinner  v.  Wilder,  38  Vt.  115  ;  Lyman  v.  Hale,  11  Conn.  177. 

8  Hoffman  v.  Armstrong,  48  N.  Y.  201. 

'  Lyman  v.  Hale,  supra;   Hickey  v.  Mich.  Cent.  R.  R.,  96  Mich.  498. 

*  Hickey  v.  Mich.  Cent.  R.  R.,  supra. 


60  Law  J  or  the  American  Farmer 

its  tracks.  1  But  the  branches  of  a  tree  neither  poisonous 
nor  in  any  way  noxious  growing  upon  one  side  of  and  over- 
hanging a  boundary  hne  are  not  in  and  of  themselves  a 
nuisance  which  he  whose  land  is  shadowed  is  entitled  to 
remove  summarily;  to  warrant  him  in  cutting  away  the 
overhanging  limbs  they  must  in  some  sensible  and  practical 
way  damage  him  by  lessening  his  use  or  enjoyment  of 
the  underlying  land.^ 

§  45.    Highways  as  boundaries. 

In  all  places  where  the  common  law  prevails,  and  that 
is  generally,  the  boundary  Hne  of  a  farm,  when  a  highway,  is 
always,  unless  the  deed  provides  otherwise,  the  center 
line  of  the  road.^  A  deed  of  land  bounded  along  a  road 
laid  out  entirely  upon  the  grantor's  own  land,  but  upon  the 
extreme  edge  of  it,  will  convey  the  whole  road;^  but  a  deed 
which  calls  for  the  Hne  of  a  private  road  as  a  boundary 
of  the  land  conveyed,  and  gives  to  the  grantee  a  right  to 
open  and  use  such  road,  conveys  no  title  in  fee  to  any  part 
of  the  road.^  This  ownership  of  the  highway,  whether  to 
the  middle  line  or  of  the  whole  road,  carries  with  it,  sub- 
ject to  the  public  easement,  the  rights  of  the  owner  of  a 
fee.  The  abutting  owner  is  entitled  to  the  trees  and  grass 
which  grow  upon  his  part  of  the  highway.^  He  retains 
his  exclusive  right  to  all  timber  growing  in  the  highway 

1  Pitts,  C.  C.  &  St.  L.  Ry.  v.  Parish,  28  Ind.  App.  189. 
'  Countryman  v.  Lighthill,  24  Hun,  405. 
»  See  ante.  Chap.  VI,  §  36,  note  3. 

*  Haberman  v.  Baker,  128  N.  Y.  253. 

'  Clayton  v.  Gilmer  Co.  Ct.,  58  W.  Va.  253. 

•  Barclay  v.  Howell,  6  Pet.  498 ;  Peo.  v.  Foss,  80  Mich.  569. 


The  Boundaries  of  the  Farm  61 

not  incompatible  with  the  pubhc  right  of  way.^  Any  one 
who  recklessly  or  heedlessly  injures  trees  growing  beside 
the  highway  is  liable  to  prosecution  for  wrongfully  in- 
juring the  property  of  the  abutting  owner. ^  A  highway 
commissioner  who  causes  trees  to  be  removed  from  the  high- 
way without  giving  the  owner  notice  and  an  opportunity 
to  remove  them  himself  is  Uable  in  damages ;  and  if  the 
trees  do  not  obstruct  the  highway,  their  removal  cannot  be 
compelled.^  But  trees  which  do  obstruct  travel  or  interfere 
with  the  pubhc  use  carmot  be  permitted  to  remain.^  The 
owner  of  the  soil  has  a  lawful  right  to  plant,  rear,  and 
maintain  shade  trees  along  the  edge  of  the  highway  where 
they  in  nowise  interfere  with  the  use  of  the  walk  or  drive- 
way, and  he  may  repel,  with  force,  if  necessary,  any  one 
who  threatens  their  injury  or  destruction.^ 

§  46.     Water  lines. 

The  title  of  a  landowner  whose  land  is  bounded  by  a 
stream  of  water  extends  to  the  middle  of  it  if  it  is  not  navi- 
gable and  to  high-watermark,  if  it  is  navigable.^  When  the 
title  runs  to  the  thread  of  the  stream,  it  includes  any  islands 
lying  in  the  stream  between  the  channel  and  the  bank.^ 
No  matter  on  which  side  of  a  stream  an  accretion  forms,  the 
boundary  will  still  remain  in  the  middle  of  the  channel.^ 

»  Jackson  v.  Hathaway,  15  Johns.  447  ;  Overman  v.  May,  35  Iowa,  89 ; 
Comr's  Shawnee  Co.  v.  Beckwith,  10  Kan.  603. 

2  Daily  v.  State,  51  Ohio  St.  348. 

3  Clark  V.  Dasso,  34  Mich.  86. 

*  Patterson  v.  Vail,  43  Iowa,  142. 

6  Graves  v.  Shattuck,  35  N.  H.  257 ;  Welhnan  v.  Dickey,  78  Me.  29. 
«  Ante,  Chap.  VI,  §  36.     Welles  v.  Bailey,  55  Conn.  292. 

7  Chandos  v.  Mack,  77  Wis.  573. 

«  Nebraska  v.  Iowa,  143  U.  S.  359. 


62  Law  for  the  American  Farmer 

The  channel  of  a  stream  is  the  passageway  between  the 
banks  through  which  the  water  fiows.^  A  natural  water- 
course called  for  as  a  boundary  of  land  must  have  a  bed 
and  banks  and  show  evidence  of  a  permanent  stream  of 
running  water.^  Title  of  a  riparian  owner  upon  a  navi- 
gable stream  above  the  ebb  and  flow  of  the  tide  is  some- 
times said  to  extend  to  the  middle  of  the  stream  subject  to 
the  public  rights  of  navigation;^  but,  in  general,  it  does  not 
run  to  the  middle  of  a  navigable  stream,^  and  it  always 
stops  at  high-water  mark  on  a  navigable  stream  in  which 
the  tide  ebbs  and  flows.^  If  the  high-water  mark  changes, 
the  boundary  line  changes  with  it.^  The  boundary  of 
riparian  land  advances  as  the  water  retires  and  accretions 
form,  and  recedes  as  the  waters  encroach  and  eat  away  the 
bank.^  The  high-water  mark  of  a  fresh  water  stream  is 
not  the  highest  point  reached  by  its  waters  in  freshets, 
but  the  lines  along  its  banks  which  are  covered  with  water 
enough  to  destroy  vegetation  and  the  value  of  the  soil  for 
cultivation.^  When  a  boundary  line  is  said  to  meander, 
the  meaning  is  that  it  follows  the  sinuous  and  winding 
course  of  a  river  or  stream.^  In  government  surveys 
meander  lines  along  navigable  rivers  do  not  trace  the 
boundary,  but  are  merely  to   show  the  sinuosities  of  the 

1  Morton  v.  Oregon  S.  L.  Ry.,  48  Ore.  444. 
'  Howard  v.  IngersoU,  13  How.  381. 
s  Grey  v.  Paterson,  60  N.  J.  Eq.  385. 

*  Moore  v.  Farmer,  156  Mo.  33. 

'  Sage  V.  N.  Y.  City,  154  N.  Y.  61. 

•  Steele  v.  Sanchez,  72  Iowa,  65. 
»  Cox  V.  Arnold,  129  Mo.  337. 

8  Dow  V.  Electric  Co.,  69  N.  H.  498. 

'  Seneca  Indians  v.  Knight,  23  N.  Y.  498 ;   Turner  v.  Parker,  14  Ore. 
340. 


The  Boundaries  of  the  Farm  63 

bank  as  a  means  of  ascertaining  the  quantity  of  land 
in  the  tract  surveyed ;  the  rivers  themselves  are  the 
true  boundaries.^  The  right  and  left  banks  of  a  stream, 
when  either  is  mentioned  in  a  deed,  are  the  banks 
on  the  right  and  left  of  a  person  facing  or  an  object 
passing  downstream  as  it  flows  from  source  to  mouth  .^ 
Properly  speaking,  a  river  has  no  shores,^  only  banks. 
The  shore  of  the  sea  or  a  lake  is  the  land  on  the  margin 
between  ordinary  high  and  low  water."*  By  the  common 
law,  fresh  water  lakes,  great  navigable  ones  excepted,  be- 
long to  the  owners  of  their  shores,^  and  a  deed  of  land 
bounded  on  one  side,  as  along  a  pond,  unless  it  expresses 
the  contrary,  will  carry  title  to  the  middle  of  the  pond.^ 
But  if  the  lake  although  not  navigable  is  a  large  one,  for 
example,  several  miles  long  and  scores  of  rods  wide,  a  deed 
of  land  running  to  it  and  along  its  shore  will  convey  no 
part  of  its  bed;^  at  most,  title  will  run  only  to  low- water 
mark.^  On  large  rivers  and  great  lakes  shore  titles  will 
not  extend  beyond  the  waters'  edge  even  where  the  level 
has  been  permanently  raised  by  artificial  conditions.^ 
Avulsion,  that  is,  the  sudden  and  violent  change  in  the 
course  and  banks  of  a  stream,  leaves  the  boundary  line 
unchanged  in  its  old  place  and  neither  confers  nor  takes 

1  Jefferies  v.  E.  Omaha  Land  Co.,  134  U.  S.  178 ;  Home  v.  Smith,  159 
U.  40. 

2  Borkenhagen  v.  Vianden,  82  Wis.  206. 

'  ChUd  V.  Starr  (N.  Y.)  4  Hill,  369  ;  Bainbridgeu.  Sherlock,  29  Ind.  364. 

*  Shively  v.  Bowlby,  152  U.  S.  1. 

6  Hardin  v.  Jordan,  140  U.  S.  371. 

«  Gouverneur  v.  Nat.  Ice  Co.,  134  N.  Y.  355. 

^  Noyes  v.  Collins,  92  Iowa,  566. 

8  Lembeck  v.  Nye,  47  Ohio  St.  336. 

»  Pewaukee  v.  Savoy,  103  Wis.  271. 


64  Law  for  the  American  Farmer 

away  title  up  to  that  line.^  A  sudden  and  violent  flood, 
due  to  an  ice  gorge  in  a  navigable  river  bounding  two 
states,  which  visibly  cuts  a  new  channel,  for  instance, 
leaves  the  boundary  line  unchanged  and  the  titles  and 
boundaries  of  private  landowners  on  each  side  unaffected.^ 

»  Chicago  V.  Ward,  169  111.  392;    Rees  v.  McDaniel,  115  Mo.  145; 
Bouvier  v.  Stricklett,  40  Neb.  792. 
«  Fowler  v.  Wood,  73  Kan.  511. 


CHAPTER  VIII 

APPURTENANCES  AND  EASEMENTS 

§§  47-54 
§  47.     Appurtenances. 

Appurtenances  signify  things  appertaining  to  some 
principal  thing  which  go  with  it  as  incidents  when  it  is 
transferred  to  another  owner. ^  They  are  things  used  with 
and  related  to  or  dependent  upon  another  thing  more 
worthy  and  agreeing  with  it  in  its  nature  and  quality.^ 
A  thing  is  appurtenant  to  something  else  only  when  it 
occupies  the  relation  of  an  incident  to  a  principal  with 
the  use  and  enjoyment  of  which  it  is  necessarily  connected.^ 
A  right  not  connected  with  the  use  or  enjoyment  of  land 
is  not  an  appurtenance  to  it  and  does  not  pass  when  the 
land  is  conveyed.^  When  the  word  ''appurtenances"  is 
used  in  conveyances  of  land,  it  means  the  things  which 
are  adjuncts  or  appendages  to  the  land  and  incidental 
to  the  reasonable  and  convenient  use  and  enjoyment  of 
the  premises  granted.^     Therefore,  one  parcel  of  land  can- 

1  Harris  v.  Elliott,  10  Pet.  25. 

*  Jarvis  v.  Seele  Mill.  Co.,  173  111.  192. 

'  Humphreys  v.  McKissock,  140  U.  S.  304. 

*  Linthicum  v.  Ray,  9  Wall.  241. 

'  Scott  V.  Moore,  98  Va.  668  ;  Sherrick  v.  Cotter,  28  Wash.  25 ;  Cleary 
e.  Skiffich,  28  Colo.  362. 

F  65 


66  Law  for  the  American  Farmer 

not  be  appurtenant  to  another  parcel ;  ^  land  beyond  the 
boundaries  described  in  a  deed  never  does  and  never  can 
pass  as  an  appurtenance.  ^  A  deed  of  land  with  the 
appurtenances  will  convey  all  the  appurtenances  actually 
existing  at  the  time  it  is  executed,  but  it  will  not  create 
any  others.^ 

§  48.     Easements. 

An  easement  is  a  burden  on  one  and  an  appurtenance 
to  another  estate  necessary  to  the  enjoyment  of  the  latter 
and  something  more  than  a  convenience.^  It  exists  dis- 
tinct from  the  ownership  of  the  soil.^  It  is  a  liberty, 
privilege,  or  advantage  in  land  without  profit^  which  the 
owner  of  one  estate  may  exercise  for  his  o^vn  benefit  in  or 
over  the  estate  of  another.''  It  is  created  by  a  grant  ex- 
pressed or  implied  from  one  landowner  to  another  confer- 
ring a  use,  benefit,  dominion,  or  advantage  from  or  over 
the  grantor's  estate.^  It  is  a  privilege  without  profit 
which  the  owner  of  one  tenement  has  a  right  to  enjoy  with 
respect  of  his  tenement  in  or  over  the  tenement  of  another 
whereby  that  other  is  bound  to  permit  or  to  refrain  from 
doing  something  on  his  own  tenement  for  the  advantage 
of  the  first.^     It  is  a  privilege  off  and  beyond  the  local 

1  Moss  V.  Chappell,  126  Ga.  196;    Humphreys  v.  McKissock,  supra. 

2  Jones  V.  Johnston,  18  How.  150;  Woodhull  v.  Rosenthal,  61  N.  Y. 
382. 

«  Muscogee  Mfg.  Co.  v.  Eagle  &  Phoenix  Mills,  126  Ga.  210. 

*  Jarvis  v.  Seole  Mill.  Co.,  supra. 

'  Stokes  V.  Maxson,  113  Iowa,  122 ;  Burnet  v.  Crane,  56  N.  J.  L.  285. 
'  Stokes  V.  Maxson,  supra;   Albright  v.  Cortright,  64  N.  J.  L.  330. 
'  G.  L.  &  P.  J.  R.  R.  V.  N.  Y.  &  G.  L.  R.  R.,  134  N.  Y.  435. 

•  Huyck  V.  Andrews,  113  N.  Y.  81. 

»  Stevenson  v.  Wallace,  27  Gratt.  77. 


Appurtenances  and  Easements  67 

boundaries  of  the  tenement  to  which  it  is  appurtenant.^ 
It  is  a  dominant  estate  imposed  upon  a  servient  tenement.^ 
It  always  involves  two  distinct  tenements:  a  dominant 
estate  to  which  it  is  appurtenant,  and  a  servient  estate 
upon  which  it  is  a  burden.^  It  necessarily  imphes  a  fee  in 
another  than  him  who  owns  it ;  it  is  only  a  right  to  a  use  of 
land  for  some  special  purpose  and  is  not  inconsistent  with 
the  general  property  in  the  land  upon  which  it  rests.^  It 
belongs  to  the  land  which  constitutes  the  dominant  estate 
and  not  to  him  who  o\mis  it.^  An  easement  that  is  not 
mentioned  in  a  deed  will  not  pass  by  implication  unless 
it  naturally  and  necessarily  belongs  to  the  premises  con- 
veyed.*' An  easement  is  always  an  estate  in  lands  and 
consequently  is  not  to  be  granted  orally ;  ^  it  must  rest  in 
a  written  grant  or  arise  by  prescription,  by  which  a  grant 
is  presumed.^  But  an  oral  grant  of  an  easement  certain 
in  its  terms,  made  for  a  good  consideration  followed  by 
such  a  possession  and  enjoyment  by  the  grantee,  as  would 
be  sufficient  to  take  an  oral  contract  for  the  sale  and  pur- 
chase of  real  estate  out  of  the  operation  of  the  statute  of 
frauds,  will  be  effectual   in  the  same  way.^    A  statute 

1  Tucker  v.  Jones,  8  Mont.  225. 

2  Consol.  Gas  Co.  v.  Baltimore,  101  Md.  541. 

3  McMahon  v.  Williams,  79  Ala.  288 ;  Bonney  v.  Greenwood,  96  Me. 
3.35 ;  Seymour  v.  Lewis,  13  N.  J.  Eq.  439 :  Nellis  v.  Munson,  108  N.  Y. 
453. 

*  Cinein.  H.  &  D.  R.  R.  v.  Wachter,  70  Ohio  St.  113. 
'  Ross  V.  Thompson,  78  Ind.  90. 

8  Walker  v.  Clifford,  128  Ala.  67;  Whiting  v.  Gaylord,  66  Conn.  337; 
Bumstead  v.  Cook,  169  Mass.  410. 

">  Howes  V.  Barmon,  11  Idaho,  64;   Laesch  v.  Morton,  38  Colo.  171. 
8  Walker  v.  Shackelford,  49  Ark.  503. 

*  Znamanacek  v.  Jelinek,  69  Neb.  110. 


68  Law  J  or  the  American  Farmer 

which  requires  deeds  to  be  recorded  appHes  as  well  to  con- 
veyances of  easements.^  Easements  are  continuous  or  dis- 
continuous: a  continuous  easement  is  used  or  enjoyed  with- 
out an  intervening  human  agency,  and  a  discontinuous 
easement  is  one  which  is  enjoyed  or  used  only  by  a  person. 
The  discharge  of  rain  water  from  a  spout  is  an  example  of  a 
continuous  easement,  and  a  right  of  way  is  an  example  of  a 
discontinuous  one.^  Easements  are  further  distinguished 
as  appurtenant  easements  and  easements  in  gross.  The 
latter,  unlike  the  former,  are  neither  assignable  nor  inher- 
itable; they  die  with  the  person  and  are  so  exclusively 
personal  that  they  who  own  them  cannot  take  other 
persons  with  themselves  to  enjoy  them  in  their  company. ^ 
Whether  in  a  given  case  an  easement  is  an  appurtenant 
one  or  one  in  gross  is  determined  mainly  by  the  nature 
of  the  right  and  the  intention  of  its  creators.^  An  ap- 
purtenant easement  is  an  incorporeal  right  attached  to 
and  belonging  with  some  greater  or  superior  right ;  it  is 
something  annexed  to  another  thing  more  worthy,  and  it 
passes  as  an  incident  to  that  other  thing.  It  is  a  species 
of  what  the  civil  law  called  a  servitude  and  is  incapable 
of  a  separate  existence  apart  from  the  particular  messuage 
or  land  to  which  it  is  annexed.^  An  easement  is  an  in- 
corporeal hereditament  —  something  inheritable  but  in- 
tangible —  a  creature  of  the  mind  which  can  neither  be 
seen  nor  handled.^     Ejectment,  therefore,  is  not  available 


1  Dawson  v.  West.  Md.  R.  R.,  107  Md.  70. 

*  Bonelli  v.  Blakemore,  66  Miss.  136  ;  Fetters  v.  Humphreys,  18  N.  J. 
Eq.  260.  3  Cadwalader  v.  Bailey,  17  R.  I.  495. 

<  Ihid.  6  Ibid. 

«  Hegan  v.  Pendennis  Club,  64  S.  W.  464  ;  Stone  v.  Stone,  1  R.  I.  425 ; 
Slingerland  v.  Internatl.  Contr.  Co.,  43  App.  Div.  215. 


Appurtenances  and  Easements  69 

to  recover  an  easement,  because  to  sustain  ejectment 
there  must  be  something  of  which  the  possession  can  be 
dehvered.^  An  easement  may  be  lost  by  abandonment, 
but  the  abandonment  must  be  intentional  and  done  of  set 
purpose.  Mere  neglect  to  use  it  without  a  design  to  re- 
linquish it  is  not  an  abandonment  j^  something  more  than 
mere  passivity  is  required.^ 

§  49.    Fixtures. 

A  fixture  in  the  law  of  real  property  is  a  piece  of  personal 
property  so  affixed  to  land  as  to  become  a  part  of  the  real 
estate.^  In  general,  that  which  can  be  removed  A\dthout 
injury  to  the  freehold  and  especially  without  even  dis- 
figuring it  is  not  a  fixture.^  As  a  general  thing  an  actual 
physical  annexation  and  attachment  to  the  realty  is 
essential  to  convert  a  personal  chattel  into  a  fixture.^ 
This  is  regarded  as  the  most  certain  and  practical  test  of  a 
fixture,^  but  it  is  not  absolute  nor  wholly  satisfactory.^ 
There  is  no  universal  test  whereby  the  character  of 
what  is  claimed  to  be  a  fixture  can  be  abstractly  deter- 
mined ;  neither  the  mode  of  annexation  nor  the  manner 
of  use  is  in  all  cases  conclusive ;  it  must  usually  depend 

1  Hancock  v.  McAvoy,  151  Pa.  St.  460. 

2  Welsh  V.  Taylor,  134  N.  Y.  450;  Gassert  v.  Noyes,  18  Mont.  216; 
Dill  V.  Camden  Bd.  of  Educ,  47  N.  J.  Eq.  421. 

»  Wm.  Wolff  &  Co.  V.  Can.  Pac.  R.  R.,  123  Cal.  535. 

*  Cole  V.  Roach,  37  Tex.  413;  Padgett  v.  Cleveland,  33  S.  Car.  339; 
Hamilton  v.  Austin,  36  Hun,  138;  Da\as  v.  Mugan,  56  Mo.  App.  311. 

^  Swift  V.  Thompson,  9  Conn.  63  ;  Farrar  v.  Chaurffet^te,  5  Denio, 
527;   M'Clintock  v.  Graham,  3  M'Cord,  L.  553. 

6  Blancke  v.  Rogers,  26  N.  J.  Eq.  563. 

'  Baker  v.  Davis,  19  N.  H.  325. 

8  Strickland  v.  Parker,  54  Me.  263. 


70  Law  for  the  American  Farmer 

upon  the  understanding,  express  or  tacit,  of  the  parties 
concerned.^  A  rule  which  perhaps  comes  nearer  than  any- 
other  to  being  of  general  application  is :  that  to  constitute 
a  fixture  it  is  essential  that  the  chattel  be  annexed  to 
the  freehold,  and  also  from  an  inspection  of  the  prop- 
erty in  the  light  of  the  character  of  the  annexation,  the 
nature,  adaptation,  and  uses  of  the  annexed  chattel,  and 
of  the  structure  to  which  it  was  annexed  at  the  time  the 
annexation  was  made,  and  of  the  relation  to  the  property 
of  him  who  made  it  that  it  should  clearly  appear  that  a 
permanent  accession  to  the  freehold  was  intended.^  Build- 
ings in  general  become  a  part  of  the  land  upon  which  they 
stand,  but  by  contract  between  the  landowner  and  him 
who  erects  them  they  may  be  made  to  remain  the  latter's 
personal  property.^  Things  may  be  fixtures  although  not 
fastened  in  any  way  to  the  realty,  as  where  they  are  parts 
of  permanent  buildings,  as,  for  instances,  doors,  window- 
sashes,  and  blinds,  merely  hung  and  capable  of  being  lifted 
bodily  from  their  hinges.*  A  key  belonging  to  the  door 
of  a  house,  although  carried  in  the  pocket,  is  always  a 
fixture,  while  a  carpet  never  is,  although  nailed  to  the 
floor. ^  All  fixtures  are  for  the  time  being  a  part  of  the 
realty,  and  when  he  who  set  them  up  has  a  right  to  re- 
move them,  he  must  exercise  that  right  during  the  term 
of  his  lawful  possession  or  else  the  right  is  lost.^    As  be- 

1  Wheeler  v.  Bedell,  40  Mich.  693. 

*  Capen  v.  Peckham,  35  Conn.  88 ;    Hutchins  v.  Masterson,  46  Tex. 
554. 

'  Kinkead  v.  U.  S.,  150  U.  S.  483 ;    Tifft  v.  Horton,  53  N.  Y.  377 . 
Fifield  V.  Farmers'  Bank,  14S  111.  163. 

*  Farrar  v.  Stackpole,  6  Grecnl.  154. 

6  Goodin  v.  EUeardsville  Hall  Asso.  5  Mo.  App.  289. 
6  Preston  v.  Briggs,  16  Vt.  124. 


Appurtenances  and  Easements  71 

tween  landlord  and  tenant,  whatever  has  been  afl&xed  to 
the  land  for  the  purposes  of  trade  may  be  removed  at  the 
end  of  the  term;^  it  remains  personal  property. ^ 

§  50     Trade  Fixtures. 

Anciently  the  law  was  more  strict  in  respect  of  making 
things  erected  upon  and  attached  to  the  land  a  part  of 
the  freehold  than  in  modern  times.  As  civilization  has 
advanced  and  trade  and  mechanic  arts  and  other  indus- 
tries have  multiplied  and  developed,  and,  correspondingly, 
their  necessities  and  wants  of  reasonable  convenience, 
there  has  been  a  relaxation  of  the  strict  rule  of  law  in 
their  favor.  It  is  the  policy  of  the  law  to  encourage 
trade,  manufactures,  and  transportation,  and  buildings, 
fixtures,  machinery,  certainly  intended  and  calculated  to 
promote  them,  are  treated,  not  as  part  of  the  land,  but 
distinct  from  it,  belonging  to  the  tenant,  to  be  disposed 
of  or  removed  at  his  will  and  pleasure,  during  the  term 
and,  in  some  cases,  after  it  has  ended.  This  exception  to 
the  rule  referred  to  above  does  not  depend  upon  the 
character  of  the  structure  or  thing  erected,  nor  whether 
it  is  built  of  one  or  another  material,  nor  whether  it  is 
set  in  or  upon  the  earth,  but  whether  it  was  intended  for 
the  purposes  of  trade  or  manufacture  and  not  intended  to 
become  a  part  of  the  land.^  The  English  doctrine  that 
all  this  does  not  apply  to  structures  made  solely  for  agri- 
cultural purposes  is  not  accepted  in  the  United  States.* 

1  Freeman  v.  Dawson,  110  U.  S.  264  ;  Wiggins  Ferry  Co.  v.  Ohio  &  M. 
R.  R.,  142  id.  396. 

2  Herkimer  Lt.  &  P.  Co.  v.  Johnson,  37  App.  Div.  257. 
»  West.  N.  Car.  R.  R.  v.  Deal,  90  N.  C.  110. 

*  Van  Ness  v.  Pacard,  2  Pet.  137. 


72  Law  for  the  American  Farmer 

Personal  property  not  fixtures  will  not  pass  as  appur- 
tenances upon  a  conveyance  of  land.^  A  wooden  build- 
ing that  rests  by  its  own  weight  on  flat  stones  laid  upon 
the  surface  of  the  ground  is  personal  property  and  not  a 
fixture.^  As  a  rule  agricultural  implements  which  can  be 
removed  without  injury  to  the  freehold  do  not  become 
fixtures.^  For  examples,  a  boiler,  saw-rig,  shingle-mill, 
and  planer,^  a  bell  used  for  farm  purposes  and  hung  on 
but  not  fastened  to  posts  set  in  the  ground,^  a  cider  mill 
and  press  set  up  by  a  farm  tenant  from  year  to  year  at 
his  own  expense  and  for  his  own  use,  although  embedded 
in  the  gi-ound,^  a  portable  detached  sawmill,^  a  portable 
detached  gristmill,^  a  cotton  gin  and  press,^  a  cotton 
gin  with  its  band  and  rollers,^"  an  unattached  gin-stand, ^^ 
are  none  of  them  fixtures.  But  a  gin-house  with  its 
running  gear  and  packing  screw  all  firmly  affixed  to  the 
land  has  been  held  to  be  a  fixture,^^  and  so  has  a  portable 
gristmill  fastened  to  a  building  to  be  there  used  in  grind- 
ing grain  for  hire  and  intended  to  be  kept  permanently 
in  place.^^     Hewn  timber,  posts,  and  logs  which  lie  loose 

1  Ottumwa  Mill  Co.  v.  Hawley,  44  Iowa,  57  ;   Scheldt  v.  Belz,  4  111. 
App.  431 ;    Bloom  v.  West,  3  Colo.  App.  212. 

2  Carlin  v.  Ritter,  68  Md.  478 ;   Dubois  v.  Kelly,  10  Barb.  496. 
'  McJunkin  v.  Dupree,  44  Tex.  500. 

*  Choate  v.  Kimball,  56  Ark.  55. 

'  Cole  V.  Roach,  supra. 

«  Holmes  v.  Tremper,  20  Johns.  29. 

">  Brown  v.  Lillie,  6  Nev.  244 ;    Hughes  v.  Edisto  Shingle  Co.,  51  S. 
Car.   1. 

'  McJunkin  v.  Dupree,  supra.  *  Ibid. 

10  Gresham  v.  Taylor,  51  Ala.  505. 
"  Cole  V.  Roach,  siipra. 
12  McDaniel  v.  Moody  (Ala.),  3  Stew.  314. 
w  Potter  V.  Cromwell,  40  N.  Y.  287. 


Appurtenances  and  Easements  73 

upon  the  ground,  although  gathered  and  designed  for 
materials  to  build  a  granary,  are  not  fixtures ;  ^  neither  are 
loose  and  movable  boards  used  for  making  bins.^  A 
cotton  gin,  being  a  chattel  and  not  a  fixture,  does  not  pass 
by  a  conveyance  of  the  land  on  which  it  stands;^  but 
corncribs  upon  a  leased  farm  built  by  the  tenant  upon 
posts  sunk  in  the  ground  will  pass  as  fixtures  to  a  pur- 
chaser of  the  farm  who  has  no  notice  of  an  oral  agreement 
between  the  tenant  and  his  grantor  that  the  former  might 
take  them  away.^ 

§51.     Rights  of  way. 

The  term  "right  of  way"  has  a  twofold  meaning.  It 
is  used  to  describe  a  right  belonging  to  a  person,  —  a  mere 
intangible  right  to  cross, — a  right  of  crossing  over  a  tract 
of  land ;  and  it  is  also  used  to  denote  the  strip  of  ground 
which  a  railroad  company  appropriates  for  the  construction 
of  its  road-bed.^  The  term  is  used  here  in  the  sense 
of  a  right  or  vested  privilege  of  passage  over  the  land  of 
another,  of  an  incorporeal  hereditament,  of  which,  it  is 
said,  it  is  the  most  conspicuous  example.^  A  conveyance 
of  land  and  its  appurtenances  carries  an  appurtenant  right 
of  way^  reasonably  necessary  to  the  enjoyment  of  the  land.* 

1  Cook  V.  Whiting,  16  III.  480. 

2  Whiting  V.  Brastow,  4  Pick.  310. 
'  Hancock  v.  Jordan,  7  Ala.  448. 

*  Smyth  V.  Stoddard,  203  111.  424. 

6  Joy  V.  St.  Louis,  138  U.  S.  44 ;  Keener  v.  U.  Pac.  R.  R.,  31  Fed.  126. 

*  Hegan  v.  Pendennis  Club ;  Slingerland  v.  Internat.  Contr.  Co. ; 
Stone  V.  Stone,  supra. 

■>  Corea  v.  Higuera,  153  Cal.  451. 

8  Shields  v.  Titus,  46  Ohio  St.  528 ;  Valentine  v.  Schreiber,  3  App.  Div. 
235 ;   L.  &  N.  R.  R.  v.  Koelle,  104  111.  455. 


74  Law  for  the  American  Farmer 

A  way  which  is  appurtenant  is  an  inheritable  estate  pass- 
ing to  the  heirs  and  assigns  of  the  grantees  of  the  land  to 
which  it  is  attached.^  The  rights  of  the  owner  of  a  right 
of  way  are  paramount  to  those  of  the  owner  of  the  servient 
soil.2  If  the  way  has  defined  limits,  the  owner  of  it  has  not 
only  the  right  of  free  passage  over  the  traveled  part,  but 
also  of  unobstructed  passage  over  every  part  of  it  within 
such  limits.^  And  he  has  not  only  a  right  to  this  free 
passage  at  all  times,  but  also  to  all  rights  that  are  incidental 
or  necessary  to  the  enjoyment  of  such  right  of  passage.^ 
Although  generally  a  right  of  way  rests  in  a  grant,  yet  it 
may  be  acquired  by  prescription  through  an  adverse, 
exclusive,  and  uninterrupted  use  under  a  claim  of  right 
for  the  requisite  length  of  time.^  And  although  an  oral 
grant  is  void  under  the  statute  of  frauds,  yet  if  the  ease- 
ment is  enjoyed  under  it  until  the  statute  of  limitations 
has  fully  run,  an  unassailable  right  to  it  will  ripen  by  pre- 
scription.^ Once  a  right  of  way  has  been  selected  and 
located  it  cannot  be  materially  changed  by  either  party 
without  the  other's  consent,^  but  a  temporary  change  in 
the  course  of  the  way  made  for  the  convenience  of  either 
of  the  landowners  is  not  an  abandonment  of  the  original 
route.^     The  owner  of  the  servient  soil  is  under  no  obliga- 

1  Schmidt  v.  Brown,  226  111.  590. 

2  Harvey  v.  Crane,  85  Mich.  316. 
8  Ibid. 

*  Ibid. 

6  Graham  v.  Walker,  78  Conn.  130. 

8  Schmidt  v.  Brown,  supra;    Legg  v.  Horn,  45  Conn.  409;  Wells  v. 
Parker,  74  N.  H.  193 ;   Blaine  v.  Ray,  61  Vt.  566. 
'  Dudgeon  v.   Bronnson,    159   Ind.   562. 

*  Crounse  v.  Wemple,  29  N.  Y.  540 ;   Boyd  v.  Morris,  32  Ky.  L.  Rep. 
642. 


Appurtenances  and  Easements  75 

tion  to  repair  a  way.  If  it  needs  repairs,  it  is  the  duty  of  the 
owner  of  the  right  of  way  to  make  them ;  ^  he  is  bound  to 
keep  up,  maintain,  and  protect  the  way  for  use.^  But  he 
has  no  right  to  inclose  it  by  fences,^  except  when  it  Hes 
along  one  side  only  of  the  servient  land  and  fences  are 
necessary  to  prevent  passing  live-stock  from  trespassing  on 
the  adjoining  land.^  The  owner  of  the  land  subject  to 
a  right  of  way  may  rightfully  use  the  way  in  any  manner 
not  inconsistent  with  the  rights  of  the  owner  of  the  ease- 
ment.^ A  naked  grant  of  right  of  way  for  travel  will  not 
preclude  the  grantor  from  putting  up  gates  and  bars  at 
the  ends  of  the  way.^  The  gates  or  bars  must  not,  of 
course,  interfere  to  an  unreasonable  extent  with  the  proper 
use  of  the  way.^  The  mere  putting  up  of  gates  or  bars 
across  the  entrance  to  a  private  way  when  they  can  be 
opened  and  passed  through  by  anybody  at  will,  and 
keeping  them  up  for  the  whole  statutory  limitation  period, 
will  not  extinguish  the  easement;^  but  if  the  wa}^  is  in- 
closed permanently  in  a  field,  and  the  ground  over  which  it 
ran  is  plowed  up  and  cultivated  for  the  limitation  period, 
the  easement  will  be  extinguished.^     The  owner  of  a  right 

'  Harvey  v.  Crane,  supra. 

2  Bellevue  City  v.  Daly,  14  Idaho,  545. 

'  Sizer  v.  Quinlan,  82  Wis.  390. 

*  Harvey  v.  Crane,  supra. 

5  Ibid. 

6  Whaley  v.  Jarrett,  69  Wis.  613;  Phillips  v.  Dressier,  122  Ind.  414; 
Hartman  v.  Fick,  167  Pa.  St.  18. 

'  Johnson  v.  Borson,  77  Wis.  593 ;    Hartman  *    Fick,  supra. 

8  Hinks  V.  Hinks,  46  Me.  423 ;   Hempsted  v.  Huffman,  84  Iowa,  398; 
Van  Blarcom  v.  Frike,  29  N.  .J.  L.  517. 

9  Bowen  v.  Team,  6  Rich.  L.  298  ;  M.  &  B.  S.  R.  R.  v.  Ilolton,  100  Ky. 
665. 


76  Law  for  the  American  Farmer 

of  way  created  by  grant  need  not  use  it  all  the  time  nor 
even  frequently  in  order  to  retain  it ;  ^  —  no  presumption 
that  the  right  has  been  abandoned  arises  from  the  fact 
that  the  way  is  not  used  continuously.^  Mere  neglect 
to  use  the  way  for  any  length  of  time  short  of  the  statute  of 
limitations  will  not  work  an  extinguishment  of  the  ease- 
ment/ the  disuse  must  be  accompanied  by  an  intention 
to  abandon  the  way.^  A  way  not  used  for  twenty  years 
is  presumed  to  have  been  abandoned.^  An  open  and 
visible  private  way  across  land  at  the  time  it  is  conveyed 
is  notice  to  the  new  owner  of  the  existence  of  a  burdening 
easement ;  ^  but  if  the  way  is  obliterated  through  disuse 
so  that  the  purchaser  has  no  notice  of  it,  the  easement  is 
said  to  be  extinguished.' 

§  52.     Ways  of  necessity. 

A  right  of  way  of  necessity  is  a  right  which  arises  when 
a  landowner  conveys  a  part  of  his  land  and  retains  title 
to  the  rest  of  it  entirely  surrounding  the  part  he  has  con- 
veyed.    In  such  a  case  his  grantee  has  of  necessity  a  right 

J  Hofherr  v.  Mede,  226  111.  320;  Heughes  v.  Galusha  St^ve  Co.,  118 
N.  Y.  Supp.  109. 

2  Bombaugh  v.  Miller,  82  Pa.  St.  203. 

'  Edgerton  v.  McMullan,  55  Kan.  90 ;  Cox  v.  Forrest,  60  Md.  74 ; 
Emerson  v.  Wiley,  10  Pick.  310  ;  Manning  v.  P.  Reading  R.  R..  54  N.  J. 
Eq.  46 ;    Miller  v.  Oarlock,  8  Batb.  153. 

*  Hayford  v.  Spokesfield,  100  Mass.  491  ;  Welsh  v.  Taylor,  134  N.  Y. 
450;   Mason  v.  Ross,  71  Atl.  141 ;   Lathrop  v.  Eisner,  93  Mich.  599. 

^  Wright  V.  Freeman  5  Harr.  &  J.  467 ;  Browne  v.  Meth.  Church,  37 
Md.  108. 

*  Kripp  V.  Curtis,  71  Cal.  62;  Brown  v.  Kemp,  46  Ore.  617;  Mao 
donald  v.  Ferdais,  22  Can.  S.  Ct.  260. 

'  Kammerling  v.  Orover,  9  Ind.  App.  628. 


Appurtenances  and  Easements  77 

to  cross  to  and  fro  the  land  which  shuts  him  off  from 
access  to  the  pubhc  highway.*  A  grantor  is  presumed 
to  convey  whatever  is  in  his  possession,  which  is  reason- 
ably necessary  to  the  enjoyment  of  the  land  he  conveys.^ 
A  way  of  necessity  always  rests  upon  an  implied  grant 
as  an  incident  to  the  land  conveyed  by  him  over  whose 
remaining  land  the  way  must  go  ;  ^  and  there  cannot  be 
an  implied  grant  of  a  right  of  way  upon  considerations 
merely  of  convenience,  but  it  must  invariably  rest  upon  a 
necessity.^  The  necessity  must  be  something  more  than 
a  simple  convenience,  though  it  need  not  be  an  absolute  one.^ 
A  right  of  way  of  necessity  passes  to  the  grantee  in  each 
successive  conveyance.®  It  does  not  exist  without  unity 
of  ownership  of  the  surrounding  land.^  The  right  to  locate 
a  way  of  necessity  belongs  to  the  owner  of  the  land  over 
which  it  must  pass,  but  he  must  exercise  it  reasonably  and 
promptly  upon  request  ;*  if  he  does  not  do  so,  the  grantee 
may  select  the  route  subject,  if  he  abuses  this  privilege,  to 
correction  by  the  courts.^  After  a  way  of  necessity  has 
been  definitely  located,  it  can  be  changed  only  by  consent 

»  Ellis  V.  Bassett,  128  Ind.  118;  Fairchild  v  Stewart,  117  Iowa,  734  ; 
Whitehouse  v.  Cummings,  83  Me.  91 ;  Palmer  v.  Palmer,  150  N.  Y.  139  ; 
TurnbuU  v.  Rivers,  3  M'Cord,  L.   131. 

'  Robinson  v.  Clapp,  65  Conn.  365. 

3  Voorhees  v.  Burchard,  55  N.  Y.  98;  Banks  v.  McLean  Co.  School 
B'd,  194  111.  247. 

"  Ward  V.  Robinson,  77  Iowa,  159 ;  Hildreth  v.  Googins,  91  Me.  227 ; 
Staples  V.  Cornwall,  114  App.  Div.  596;  Meredith  v.  Frank,  56  Ohio  St. 
479. 

6  Paine  v.  Chandler,  134  N.  Y.  385. 

«  Blum  V.  Weston,  102  Cal.  362. 

'  EUia  V.  Blue  Mt.  Forest  Asso.,  69  N.  H.  386. 

8  Ritchey  v.  Welsh,  149  Ind.  214. 

»  Palmer  v.  Palmer,  supra. 


78  Law  for  the  Arnerican  Farmer 

of  both  landowners.^  There  cannot  be  a  way  of  necessity 
if  there  is  any  other  reasonable  and  practical  way  to  reach 
the  land  it  would  serve,^  —  if  there  is  any  other  suitable 
means  of  access  to  it ;  ^  especially  not  when  there  is  free 
access  without  it  to  and  from  a  public  highway.'*  Access 
by  water  to  land  on  the  sea-shore  destroys  the  right  to  a 
way  of  necessity  across  private  land  surrounding  the  other 
sides.^  A  right  of  way  created  by  necessity  ends  when 
the  necessity  ends ;  ^  thus,  if  a  public  road  is  opened  to 
lands  which  enjoy  a  way  of  necessity,  the  way  is  extin- 
guished even  though  it  is  more  convenient  to  use  than  is 
the  road.''  It  is  also  extinguished  when  both  the  dominant 
and  the  servient  estates  are  reunited  in  one  OA\aier.^  The 
grantee  of  land  over  which  an  earlier  grantee  of  his  grantor 
has  a  right  of  way  of  necessity  takes  it  subject  to  that 
easement.^ 

§  53.     Water  service. 

"When  land  is  conveyed  and  is  supplied  with  water  from 
a  spring  and  conduit  upon  other  land  of  the  grantor,  the 
right  to  a  continuance  of  the  supply  passes  as  an  appur- 
tenance.^"    The  right  to  the  continued  use  of  water  piped 

'  Ritchey  v.  Welsh,  supra. 

2  Trump  V.  McDonnell,  120  Ala.  200. 

3  Charleston  &  W.  C.  R.  R.  v.  Fleming,  118  Ga.  699;  M'Donald  v. 
Lindall,  3  Rawle,  492 ;   Rice  v.  Wade,  111  S.  W.  594. 

4  O'Brien  v.  Murphy,  189  Mass.  353 ;  Smyles  v.  Hastings,  22  N.  Y. 
217.  5  Kingsley  v.  Gouldsborough  Land  Co.,  86  Me.  279. 

6  Ann  Arbor  Fruit  &  V.  Co.  v.  Ann  Arbor  R.  R.,  136  Mich.  599. 
'  Pierce  v.  Selleck,  18  Conn.  321 ;    Cassin  v.  Cole,  96  Pac.  277. 
8  Lebus  V.  Boston,  107  Ky.  98 ;    Hahn  v.  Baker  Lodge,   21    Ore.   30. 
» Logan  V.  Stogsdale,  123  Ind.  372. 
10  Coolidge  v.  Hager,  43  Vt.  9. 


Appurtenances  and  Easements  79 

from  a  spring  on  one  farm  to  another  belonging  to  the 
same  owner,  the  use  of  which  is  worth  a  substantial  annual 
rental  and  materially  enhances  the  value  of  the  second 
farm,  passes  by  implication  as  an  easement  of  necessity 
when  the  latter  farm  is  conveyed  to  a  new  owner ; '  the 
owner  of  the  first  farm  will  not  be  allowed  in  such  a  case  to 
interrupt  or  cut  off  the  flow  of  water  from  the  spring  to 
the  second  farm.-  A  water  pipe  leading  from  the  main  of 
an  aqueduct  company  in  a  highway  and  traversing  inter- 
vening land  belonging  to  a  stranger  is  an  appurtenance 
to  the  premises  it  serves,  and  passes  as  such  when  those 
premises  are  conveyed.^  And  a  water-pipe  from  a  driven 
well  to  a  pump  in  a  kitchen  by  which  water  is  habitually 
drawn  for  domestic  uses  is  an  apparent  easement,  although 
both  the  well  and  the  conduit  are  all  the  time  completely 
hidden  from  view.*  A  reservation  made  by  a  landowner 
in  a  deed  of  a  part  of  his  land  containing  a  spring  of  the 
right  to  take  water  from  that  spring  and  conduct  it  to 
buildings  on  the  unsold  portion  of  his  land  makes  such 
water  right  an  appurtenance  to  the  land  he  keeps.^ 

§  54.     Licenses. 

A  license  is  a  permission  ^  to  do  something  without  which 
it  would  not  be  lawful  to  do.^  With  respect  of  real  prop- 
erty it  is  an  authorization  to  do  some  act  or  acts  upon 

1  Paine  v.  Chandler,  supra.  '  Ibid. 

'  Philbriek  v.  Ewing,  97  Mass.  133. 
*  Larson  v.  Peterson,  53  N.  J.  Eq.  88. 
^  Mason  v.  Thwing,  94  App.  Div.  77. 
'  Gibbons  v.  Ogden,  9  Wheat.  1. 

'  Standard  Oil  Co.  v.  Com.  82  S.  W.  1020 ;  Jefferson  Co.  Cora'ra  v. 
Mayr,  31  Colo.  173. 


80  Law  for  the  American  Farmer 

the  land  of  him  who  gave  it,  and  its  continuance  depends 
wholly  upon  the  will  of  the  person  who  created  it.^  It  is 
a  personal  privilege  and,  unlike  an  easement,  creates  no 
estate  in  land,^  and  therefore  an  oral  license  is  good.^  The 
mere  oral  permission  given  gratuitously  by  a  landowner 
to  another  person  to  make  a  certain  use  of  his  land,  even 
though  both  parties  contemplate  that  such  use  will  be 
permanent  and  the  person  given  the  permission  makes 
valuable  improvements  on  the  land  upon  the  faith  of 
it,  is,  after  all,  only  a  hcense  revocable  at  the  landowner's 
pleasure.^  It  is  purely  a  personal  privilege  that  may  be 
withdrawn  at  will  and  which  the  person  to  whom  it  is 
granted  has  no  power  to  transfer  to  another.^  An  ease- 
ment of  a  right  of  way  is  construed  preferably  as  ap- 
purtenant to  some  other  estate  rather  than  a  personal 
privilege.^  Although  every  license  may  be  revoked  at  any 
time,^  yet  a  license  to  use  a  driveway  enjoyed  for  thirty 
years,  where  on  the  faith  of  its  perpetuity  the  licensee  has 
spent  money  to  set  up  and  maintain  gates,  cannot  be  re- 
voked.^ The  death  of  a  landowner  who  has  given  a 
license  operates  as  a  revocation;*  in  fact,  a  license  ends 
when  either  party  dies.^''     A  conveyance  of  land  revokes 

1  Asher  v.  Johnson,  82  S.  W.  300. 

*  Ibid.  Howes  v.  Barmon.  11  Idaho,  64;  Curtis  v.  La  Grande  Water 
Co.,  20  Ore.  34.  '  Howes  v.  Barmon,  supra. 

*  Huber  v.  Stark,  124  Wis.  359. 
6  De  Haro  v.  U.  S.,  5  Wall.  599. 
"  Reise  v.  Enos,  76  Wis.  634. 

'  Wheelock  v.  Noonan,  108  N.  Y.  179 ;  Crosdale  v.  Lanigan,  129  id. 
604 ;   Harris  v.  Brown,  202  Pa.  St.  16. 

8  Nowlin  V.  Whipple,  120  Ind.  596. 

«  Metcalf  V.  Hart,  3  Wyo.  513 ;  Hodgkins  v.  Farrington,  150  Mass. 
19.  '»  De  Haro  v.  U.  S.,  supra. 


Appurtenances  and  Easements  81 

an  oral  license  to  cut  a  ditch  upon  it ;  ^  and  an  oral  license 
to  use  water  from  a  spring  is  revoked  when  the  owner  of 
the  spring  by  a  deed  to  another  person  grants  him  the  right 
to  draw  off  enough  water  to  exhaust  it.^  An  oral  license 
to  gather  fruit  from  an  orchard  is  good ;  no  grant  is  req- 
uisite for  its  validity,  but  it  is  revoked  by  a  conveyance 
of  the  orchard  without  mentioning  it.^  A  Hcense  is  strictly 
limited  by  its  terms ;  for  example,  a  license  to  go  upon 
land  and  take  the  herbage  confers  no  right  to  dig  potatoes 
or  gather  apples,  for  herbage  is  simply  green  pasture 
and  vegetation  that  is  the  natural  food  of  cattle.^  A 
purchaser  of  personal  property  on  the  seller's  land  has  an 
imphed  license  to  go  upon  the  land  and  take  away  his 
purchase.^ 

1  Hicks  Bros.  v.  Swift  Mill  Co.,  133  Ala.  411. 

2  Eckerson  v.  Crippen,  110  N.  Y.  585. 

3  Taylor  v.  Millard,  118  N.  Y.  244. 
*  Simpson  v.  Coe,  4  N.  H.  301. 

6  Nettleton  v.  Sikes  (Mass.),  8  Mete.  34;    Giles  v.  Simonds,  15  Gray 
441. 


CHAPTER  IX 

FARM   WORKERS   AND   LABORERS 

§§  55-61 

§  55.     The  legal  relation  of  the  farmer  and  his  workers. 

By  the  common  law  of  England  servants  were  divided 
into  classes,  and  agricultural  laborers  and  workers  were 
put  in  a  different  class  from  those  of  menials  and  appren- 
tices; but  in  the  United  States  in  general  no  distinction  has 
ever  been  made,  but  all  persons  who  work  for  others  are 
classed  in  law  as  servants,  no  matter  what  the  grade  or 
character  of  their  employment.^  And  correspondingly  all 
farmers  who  employ  human  help  of  any  kind  are  masters 
in  respect  of  those  whom  they  employ.  The  legal  relation, 
then,  between  the  farmer  and  his  worker,  as  in  all  other  con- 
tracts of  employment  and  service,  is  that  of  master  and 
servant.  That  relation  in  modern  times  and  in  this  coun- 
try rests  upon  a  contract  by  which  one  person  engages  to 
serve  another  and  the  other  to  pay  wages  or  other  com- 
pensation for  the  service.  The  farmer's  contracts  for 
labor  hired  by  him  are  so  far  effected  by  the  statute  of 
frauds  that  if  they  are  not  to  be  performed  within  a  year 
after  they  are  made,  they  must  be  in  writing  to  be  valid.^ 

1  Wood,  Mast.  &  Serv.,  Chap.  I,  §  2. 

«  Comstock  V.  Ward,  22  111.  248 ;  Broadwell  v.  Getman,  2  Denio,  871; 
Hemn  v.  Butters,  20  Me.  119. 

82 


Farm  Workers  and  Laborers  83 

But  an  oral  contract  hiring  a  laborer  for  a  year  to  begin 
the  next  day  has  been  held  valid. ^ 

§  56.     The  right  to  discharge. 

When  a  farmer  hires  a  person  to  work  for  him,  if  no 
definite  time  is  fixed  for  the  employment  to  last,  its  con- 
tinuance depends  upon  the  will  of  either  party,  and  the 
farmer  may  at  any  time,  with  or  without  a  reason,  dismiss 
the  worker.2  A  contract  for  the  services  of  a  laborer  will 
end  if  he  becomes  permanently  ill  or  too  disabled  to  do  his 
work.^  A  master  may  alwa3^s  discharge  his  servant  for 
a  good  cause;  for  instances,  if  the  servant  commits  a 
crime,^  or  is  guilty  of  immoralities  with  another  servant 
in  the  household,'^  or  acts  injuriously  to  the  master's 
business."  A  servant  ordinarily  may  be  justifiably  dis- 
charged if  he  is  absent  without  leave  from  his  work  ^  or 
gets  drunk,*  but  the  right  to  dismiss  him  for  these  reasons 
appears  to  have  some  limits.  A  very  careful  and  able 
author  has  said  upon  the  subject,  that  if  a  farm  hand  is 
absent  a  day  or  two  without  leave  at  a  time  when  his  serv- 
ices are  not  specially  needed  and  when  the  farmers' 
interests  cannot  suffer  by  his  absence,  it  might  not  furnish 
a  sufficient  ground  to  discharge  him ;  but  if  he  should  stay 

•  Dickson  v.  Frisbee,  52  Ala.   165.  -^ 

2  Whitcomb  v.  Gilman,  35  Vt.  297 ;  Coffin  v.  Landis,  46  Pa.  St.  426 ; 
Evans  v.  Bennett,  7  Wis.  404. 

3  Hubbard  v.  Belden,  27  Vt.  645. 

•  Libhart  v.  Wood,  1  Watts  &  S.  265. 

6  Atkin  V.  Acton,  4  Car.  &  P.  208. 

•  Drayton  v.  Reed,  5  Daly,  442. 

7  Ford  V.  Danks,  16  La.  Ann.  119 ;  Robinson  v.  Hindman,  3  Esp.  235, 
»  Wise  V.  Wilson,  1  C.  &  K.  662. 


84  Law  for  the  American  Farmer 

away  without  leave  even  a  single  day  in  harvest  time,  when 
his  services  were  urgently  needed,  and  the  farmer's  interest 
suffered  from  his  absence,  there  would  be  good  ground 
summarily  to  discharge  him  and  hire  another  man  to  take 
his  place ;  ^  and,  again,  that  if  a  farm  laborer  gets  drunk 
when  off  duty  on  a  holiday  but  returns  to  work  sober,  he 
cannot  justifiably  be  discharged  for  the  offense.^  How- 
ever that  may  be,  a  farmer  is  certainly  not  bound  to  keep 
in  his  employ  a  hired  man  who  habitually  gets  drunk.'' 
A  servant  may  always  be  discharged  for  neglect  of  his 
duties.  He  must  be  diligent  and  faithful,"*  must  honestly 
do  his  work  '"  with  ordinary  care,^  be  respectful,^  and  obey 
all  reasonable  orders.^  A  refusal  by  a  servant  to  obey  a 
proper  and  reasonable  order  about  his  work  is  cause  enough 
to  discharge  him.^  And  he  may  be  discharged  if  he  is 
abusive  or  insolent.^"  A  hired  girl,  for  example,  guilty  of 
insolence  and  wilful  disobedience  of  lawful  orders,  may  be 
summarily  dismissed.^^ 

§  57.     The  right  to  quit. 

As  the  farmer  has  an  absolute  right  to  discharge  a  laborer 
hired  for  no  definite  length  of  time,  so  the  laborer  has  the 

1  Wood,  Mast.  &  Serv.,  Chap.  IV.,  §  114. 

2  Ihid.,  §  111.  3  Gonsolis  v.  Gearheart,  31  Mo.  585. 
*  Crawford  v.  Reid,  1  Shaw's  Rep.  (Scot.)   124. 

6  Callo  V.  Brouncker,  4  Car.  &.P.  518. 

'  McCracken  v.  Hair,  2  Speers,  L.  256. 

'  Baillie  v.  Kell.,  4  Bing.  N.  Cas.  638. 

8  Lawrence  v.  GuUifer,  38  Me.  532 ;  Harrington  v.  First  Nat.  Bank, 
1  Thomp.  &  C.  361. 

'  Marsh  v.  Rulesson,  1  Wend.  515. 

>"  Champion  v.  Hartshorne,  9  Conn.  570 ;  Singer  v.  M'Cormick,  4 
Watts  &  S.  265.  "  Beach  v.   MulHn,   5  Vroom,  343. 


Farm  Workers  and  Laborers  85 

corresponding  right  to  quit  the  service  at  his  pleasure.* 
A  servant  hired  by  the  month  or  year  cannot  be  required 
to  labor  an  unreasonable  number  of  hours  every  day.^ 
He  can  be  required  to  work  in  lawful  pursuits  only.^  A 
servant  is  warranted  in  leaving  his  employment  if  required 
to  work  on  Sundays  beyond  caring  for  the  live-stock  and 
except  in  a  case  of  urgent  necessity.*  Although  a  servant 
cannot  be  required  to  do  a  different  work  than  that  for 
which  he  was  hired  and  may  not  lawfully  be  discharged  if 
he  refuses,  yet  he  may  be  called  upon  in  emergencies  where 
his  aid  is  necessary  and  will  be  insubordinate  if  he  declines 
to  obey.  Thus,  a  farm  laborer  cannot  be  compelled  to  act 
as  an  household  servant,^  neither  can  a  lady's  maid  be 
required  to  milk  cows ;  ^  but  a  farm  laborer  who  refuses  to 
carry  mortar  for  bricklayers  employed  by  the  farmer  in 
putting  up  a  farm  building  may  be  discharged  for  insub- 
ordination.'^  If  a  farmer  boards  and  lodges  his  hired  man, 
the  lodging  furnished  must  be  suitable  and  clean  and  the 
food  sound  and  wholesome,  or  the  man  may  quit.^  If  a 
master  is  cruel  or  inhuman  to  his  servant  ^  or  assaults  and 
beats  him  even  moderately,^"  he  has  a  right  to  quit  work  ; 
but  mere  rough  language  from  a  farmer  to  his  hired  man 

1  Whitcomb  v.   Gilman ;     Coffin  v.   Landis ;    and   Evans  r.   Bennett, 
supra. 

2  Wood,  Mast.  &  Serv.,  Chap.  IV.,  §  86. 

3  Berry  v.  Wallace  (Ohio),  Wright,  657. 
*  Warner  v.  Smith,  8  Conn.  14. 

'  Stuart  V.  Richardson,  Hume  (Scot.)  390. 
«  Bell's  Princip.,  117. 
'  Angle  V.  Hanna,  22  111.  429. 
8  Griffin  v.  Tyson,  17  Vt.  35. 
»  McGrath  v.  Herndon,  4  T.  B.  Mon.  480. 
w  Matthews  v.  Terry,   10  Conn.  45S. 


86  Law  for  the  American  Farmer 

is  not  sufficient  provocation  for  the  latter  to  abandon  his 
service  before  his  time  expires.^ 

§  58.     The  servant's  right  to  wages. 

A  laborer  discharged,  although  for  good  cause,  before  his 
time  is  up  is  entitled  to  his  wages  up  to  the  time  of  his 
dismissal ;  ^  and  a  servant  employed  for  a  definite  term, 
and  discharged  before  it  is  up,  without  a  sufficient  cause,  is 
entitled  to  compensation  up  to  the  end  of  the  term  for 
which  he  was  engaged.^  In  the  latter  case  such  compensa- 
tion ordinarily  will  be  the  agreed  wages  if  the  servant  has 
diligently  tried  and  failed  to  get  other  work,  but  if  he  earns 
anything  before  the  end  of  the  term,  it  will  be  lessened  by 
the  sums  earned.^  If  a  servant  quits  work  without  a  valid 
excuse  before  his  time  is  up  or  before  the  work  he  was 
hired  to  do  is  done,  he  will  be  entitled  to  nothing.^  If  no 
definite  wages  are  agreed  upon,  the  servant's  compensation 
will  be  what  his  services  are  reasonably  worth,^  and  this 
generally  will  be  the  usual  wage  paid  at  the  same  time  and 
place  for  services  of  the  same  kindJ  It  has  been  decided 
in  Kansas  that  for  the  services  of  a  man  in  taking  charge 
of  a  farm  and  stock,  who  worked  hard  and  faithfully,  and 
for  those  of  a  woman  who  worked  for  a  farmer  in  cooking, 
housekeeping,  milking  a  dozen  cows,  and  helping  to  feed 

1  Marsh  v.  Rulesson,  supra. 
«  McWilliams  i'.  Eider  (La.),  27  So.  Rep.  352. 

»  Rose  V.  Williamsville.  G.  &  St.  L.  Ry.  (Mo.  App.),  123  S.  W.  Rep. 
946. 

«  Seymour  v.  Oelricha  (Cal.),  106  Pac.  Rep.  88. 
'  Walsh  V.  Fisher,  102  Wis.  172. 
«  Mattocks  V.  LjTnan,  16  Vt.  119. 
'  Bagley  v.  Bates  (Ohio)  Wright,  705. 


Farm  Workers  and  Laborers  87 

and  care  for  a  large  number  of  hogs,  horses,  and  cattle, 
where  both  worked  for  several  years  without  any  agreement 
as  to  wages  and  neither  received  anything  beyond  a  living, 
that  seventy  five  dollars  a  month  to  each  was  not  too  much.^ 
If  a  man  hired  by  a  farmer  to  work  upon  a  farm  occupies  a 
house  and  has  the  use  of  a  garden  in  part  payment  for  his 
services,  he  may,  if  wrongfully  discharged,  recover  damages 
for  being  deprived  of  the  dwelling  and  use  of  the  garden.^ 

§  59.     The  servants  lien  for  wages. 

In  many  of  the  states  there  are  statutes  giving  to  farm 
laborers  liens  for  their  wages  on  the  farm  or  its  products  or 
both.  It  is  not  always  an  easy  task  to  decide  whether  a 
person  who  works  on  a  farm  is  or  is  not  within  the  favored 
class.  One  employed  to  cut  and  stack  hay  is  a  farm  laborer 
who  is  entitled  to  a  lien,^  and  so  is  one  employed  in  making 
sugar  on  a  sugar  plantation,'*  although  one  employed  in 
repairing  the  sugarhouse  and  cane-grinding  machinery 
and  as  a  watchman  is  not  such.^  Neither  is  one  employed 
by  a  refining  company  to  weigh  and  load  sugar  upon  cars 
and  who  hires  others  to  do  the  manual  labor,  for  he  is  a 
contractor.®  And  one  who  with  his  machinery  and  own 
servant  threshes  grain  for  another,  although  he  assists  in 
and  directs  the  work  himself,  is  not  within  a  statute  giving 
a  lien  to  anyone  doing  any  labor  on  a  farm  or  in  harvesting, 
securing,  or  housing  any  crop  grown  upon  it.^     A  woman 

1  Grisham  v.  Lee,  61  Kan.  533  ;  and  Same  v.  Greer,  ibid. 

2  Fulton  V.  Heffelfinger,  23  Ind.  App.  104. 
5  Beckstead  v.  Griffith,  11  Idaho.  738. 

*  Saloy  V.  Dragon,  37  La.  Ann.  71.  '  Ibid. 

«  Fortier  v.  Delgado,  122  Fed.  604. 
'  Mohr  V.  Clark,  3  Wash.  Terr.  440. 


88  Law  for  the  American  Farmer 

employed  in  a  farmer's  family  in  household  service  and  in 
cooking  meals  for  the  hired  men  is  held  not  to  be  a  farm 
laborer  and  hence  not  entitled  to  a  lien  for  her  wages.^     An 
overseer  is  not  an  agricultural  laborer  within  the  mean- 
ing of  statutes  giving  agricultural  laborers  liens  on  crops 
made  by  them  and  exempting  the  products  of  their  labor 
from  levy  and  sale  on  execution,^  but  a  foreman  in  charge 
of  the  laborers  on  a  farm  is  deemed  a  farm  laborer  within 
the    Massachusetts    employer's    hability   act.^     Statutes 
which  give  mechanics  liens  for  work  and  labor  are  liberally 
construed."*    The  area  of  land  subject  to  a  mechanic's  hen 
depends  upon  the  character  of  the  improvement  which 
gives  rise  to  the  lien ;  for  instance,  a  lien  for  an  irrigation 
ditch  covers  the  whole  tract  of  land  necessary  for  a  con- 
venient use  of  the  ditch.^     Improvement,  when  that  word 
is  used  in  relation  to  land,  is  a  comprehensive  term  em- 
bracing  any  bettering   of   the   land   which    changes   its 
natural  state  to  a  condition  fitting  it  for  man's  use  and 
enjoyment.    It  may  consist  of  clearing,  fencing,  building, 
or  other  things  which  adapt  and  enrich  the  soil  for  human 
use.^     A  mechanic's  lien  upon  land  may  often  be  acquired 
for  labor  and  materials  in  sinking  a  well.     In  some  states 
it  is  expressly  given  by  statute.'^     Others  hold  it  to  be  an 
"improvement,"^  though  elsewhere  it  is  deemed  not  in- 

1  Lowe  V.  Abrahamson,  19  L.  R.  A.  (N.  S.)  1039. 

»  Barkman  v.  Duncan,  10  Ark.  465 ;   Isbell  v.  Dunlap,  17  S.  Car.  581. 
»  Rowley  v.  Ellis,  197  Mass.  391. 

*  Davis  V.  Alvord,  94  U.  S.  545 ;    Flagstaff  SUv.  Min.  Co.  v.  CuUins, 
104  id.  176. 

'  Springer  Land  Asso.  v.  Ford,  168  id.  613. 

6  Johnson  v.  Gresham,  35  Ky.  542. 

'  McAuliffe  V.  Jorgenson,  107  Wis.  132. 

«  Bates  V.  Harte,  124  Ala.  427  ;  Hoppes  v.  Baie,  105  Iowa,  648. 


Farm  Workers  and  Laborers  89 

eluded  by  that  word.^  And  again  in  some  places  a  well  is,^ 
and  in  other  places  it  is  not,'  "an  appurtenance"  within  the 
meaning  of  the  mechanic's  lien  statute.  It  is  of  the  very 
nature  and  essence  of  a  lien  that  no  matter  into  whose 
possession  the  property  subject  to  it  may  go,  the  lien  goes 
with  it.*  Every  person  who  bestows  labor  and  skill  upon 
a  chattel  put  into  his  possession  for  the  purpose,  and  thus 
enhances  its  value,  has  a  lien  upon  it  at  common  law  and  a 
right  to  keep  possession  of  it  until  his  just  and  reasonable 
charges  are  paid ;  ^  but  that  lien  is  waived  or  lost  if  pos- 
session of  the  chattel  is  given  up  before  it  is  satisfied.^ 

§  60.     Liahilities  and  rights  of  the  farmer  as  a  master. 

An  entire  treatise  might  easily  be  written  without  ex- 
hausting this  particular  topic,  but  just  here  only  a  few 
points  will  be  brought  to  the  reader's  attention,  embracing 
the  farmer's  liability  to  third  persons  on  account  of  his 
servant's  conduct,  his  rights  against  third  persons  on  ac- 
count of  their  conduct  toward  his  servant,  and  finally  an 
instance  of  his  liability  to  the  servant,  apart  from  a  ques- 
tion of  wages.  These  points  are  presented  in  the  briefest 
manner  possible.  It  is  a  maxim  of  the  law  of  long  standing 
that  whatever  one  does  by  an  agent  or  servant  is  the  same 
in  effect  as  if  he  did  it  himself,  and  a  second  legal  maxim 
is  that  when  one  of  two  innocent  persons  must  suffer,  the 
loss  shall  fall  upon  him  who  put  it  in  the  power  of  a  third 

1  Guise  V.  Oliver,  51  Ark.  356.  «  Balch  v.  Chaffee,  73  Conn.  318. 

'  Omaha  Vinegar  Co.  v.  Burns,  49  Neb.  229. 

*  Burton  v.  Smith,  13  Pet.  464. 

*  Drummond  Carriage  Co.  v.  Mills,  54  Neb.  417. 

*  Fishell  V.  Morris,  57  Conn.  547. 


90  Law  for  the  American  Farmer 

person  to  cause  it.  Both  these  maxims  are  so  well  known 
and  have  been  so  long  established  that  it  is  unnecessary  to 
cite  authorities  for  them.  Every  man  in  managing  his  own 
affairs  is  bound  so  to  conduct  them  as  not  to  injure  others, 
whether  he  acts  in  person  or  by  a  servant,  and  it  is  on  this 
principle  that  a  master  is  held  responsible  to  third  persons 
for  his  servant's  ^  negligence.  A  farmer  has  in  one  case 
been  held  liable  to  a  miller  to  whom  he  carried  corn  to  be 
ground  which  he  had  innocently  and  ignorantly  put  in  a 
sack  of  grain  containing  an  iron  bolt  previously  put  there 
by  his  hired  man,  without  telling  him,  and  which  seriously 
injured  the  machinery  of  the  mill.^  And  the  owner  of  a 
cow  known  to  him  to  be  vicious  to  strangers  has  been  held 
liable  for  injuries  inflicted  by  the  beast  upon  a  person  who 
was  employed  to  milk  the  animal  and  assured  that  she  was 
gentle.^  A  person  who  entices  or  persuades  a  servant  to 
quit  his  employment,  knowing  at  the  time  of  that  employ- 
ment, is  liable  in  damages  to  the  master.^  This  does  not 
prevent  any  one  from  employing  a  person  who  has  been  the 
servant  of  another  after  he  has  actually  left  the  employ- 
ment nor  from  engaging  another's  servant  to  work  after 
term  of  emplojrment  shall  terminate.^ 

§  61.     Croppers. 

An  agreement  to  farm  land  on  shares  is  a  contract  of 
service  and  not  a  lease.^     A  cropper  has  no  interest  in  the 

1  Harding  v.  St.  Louis  Nat.  Stock  Yards,  242  111.  444, 

*  Tuel  V.  Weston,  47  Vt.  6.34. 

3  Thornton  v.  Layle,  33  Ky.  L.  Rep.  382. 

*  Walker  v.  Cronin,  107  Mass.  555 ;  Campbell  v.  Cooper,  34  N.  H.  49. 
6  Wood,  Mast.  &  Serv.,  Chap.  X.,  §§  235,  236. 

6  Bradish  v.  Schenck,  8  Johns.  151 ;    Kelly  v.  Rummerfield,  117  Wia. 
260. 


Farm  Workers  and  Laborers  91 

land.^  Such  an  agreement  does  not  create  the  relation  of 
landlord  and  tenant  between  the  owner  of  the  farm  and 
the  person  cultivating  it  for  a  share  of  the  crop.^  There  is 
a  clear  distinction  between  a  tenant  of  land  and  a  cropper. 
A  tenant,  though  he  may  pay  a  share  of  the  crop  as  rent, 
has  an  estate  in  the  land  for  his  term,  and  because  he  has 
such  an  estate  has  a  right  of  property  in  the  crop ;  but  a 
cropper  has  no  estate  in  the  land,  and  the  landowner  owns 
the  crop.  The  possession  which  the  cropper  has  of  the 
land  and  crop  is  analogous  to  the  possession  of  a  servant.^ 
The  relation  of  landlord  and  tenant  does  not  even  arise 
when  the  cropper  as  an  incident  occupies  the  farmhouse 
while  working  the  farm,  and,  therefore,  he  cannot  be  pro- 
ceeded against  under  the  landlord  and  tenant  act  for  hold- 
ing over.^  The  farm-owner  and  the  cropper  are,  however, 
tenants  in  common,  in  some  states,  of  the  crops,^  until  they 
are  harvested  and  divided.^  An  agreement  to  cultivate  a 
farm  on  shares,  by  which  the  landowner  as  security  for  his 
advances  to  the  cropper  is  to  retain  title  to  the  cropper's 
share,  is  in  the  nature  of  a  chattel  mortgage,  and  to  protect 
the  landowner  it  should  be  filed  or  recorded  as  if  it  was  a 
chattel  mortgage.'^ 

1  Kelly  V.  Rummerfield,  supra. 

2  Ibid. 

3  Harrison  v.  Ricks,  71  N.  C.  7. 

*  Mead  v.  Owen  (Vt.),  12  L.  R.  A.  (N.  S.)  655. 

6  Sims  V.  Jones,  54  Neb.  769 ;   Baughman  v.  Reed,  75  Cal.  319. 

«  McNeal  v.  Rider,  79  Minn.  153. 

•I  Ibid. 


CHAPTER  X 

THE   WATERS    OF   THE    FARM 

§§  62-76 

§  62.     What  the  waters  of  the  farm  comprise. 

The  term  "waters  of  the  farm"  is  used  in  this  chapter 
rather  loosely  and  in  a  broad  and  general  sense.     Since  an 
owner  of  a  farm  owns  the  bed  of  every  sheet  of  water  in- 
side its  lines  and  of  every  water-course  that  runs  be- 
tween them,  and  to  the  center  of  lakes  and  streams,  not 
navigable,  that  bound  it,  the  term  employed  embraces, 
primarily,  all  bodies  of  water  great  and  small,  from  lakes 
and  ponds  to  springs  and  wells,  lying  within  the  boundary 
lines  of  the  farm,  and  all  streams  that  flow  across  it  from 
the  point  of  entrance  to  the  place  of  departure,  and,  as 
well,  every  arm  or  inlet  of  the  sea,  and  fresh  water  lake, 
and  every  river  and  creek,  of  which  the  shore  or  bank,  the 
middle  or  thread,  constitutes  a  farm  boundary.     But  the 
term  here  means  more ;   it  includes  also  all  surface  waters 
due  to  rains  and  snows  and  all  sub-surface  and  percolating 
waters  that  feed  the  farm's  wells,  springs,  and  pools.     And 
it  includes,  in  addition,  water  congealed  naturally  into  ice. 
Some  of  the  waters  mentioned  belong  to  the  farmer  as 
absolutely  as  does  the  soil  of  the  farm  and  in  all  of  them 

92 


The  Waters  of  the  Farm  93 

he  has  certain  rights  of  use,  enjoyment,  and  disposal, 
either  incidental  to  littoral  or  riparian  proprietorship  or 
to  good  husbandry  in  cultivating  the  farm.  In  respect  of 
all  of  these  waters  the  farmer  has  certain  obligations  and 
duties  which  he  may  not  safely  ignore  if  he  would  avoid 
injuring  other  people  and  incurring  consequent  liability 
for  damages. 

§  63.     Bodies  of  water. 

Land  under  the  sea  and  the  great  navigable  lakes  and 
rivers  belongs,  in  general,  to  the  sovereign.  The  title  to  a 
tidewater  bay,  unless  proved  to  be  lodged  elsewhere,  is  pre- 
sumed to  be  in  the  state. ^  That  is  called  an  arm  of  the  sea 
where  the  tide  flows  and  re-flows,  and  only  so  far  as  the 
tide  does  ebb  and  flow.^  The  area  of  a  sheet  of  water  does 
not  determine  the  question  whether  it  is  a  pond  or  a  lake.^ 
If  an  unnavigable  lake  is  of  considerable  size,  for  example, 
several  miles  long,  and  four  score  or  more  rods  wide,  a  deed 
of  land  ruiming  to  and  along  it  will  convey  no  part  of  its 
bed."*  The  bed  of  a  lake  includes  only  the  soil  covered 
more  or  less  permanently  by  water  so  as  to  be  unfit  for  the 
growth  of  vegetation ;  it  does  not  include  border  lowland 
useful  for  pastures  or  meadows  although  frequently  flooded 
by  rising  water.^  For  some  purposes  a  sheet  of  water  may 
be  a  lake,  notwithstanding  it  is  too  shallow  for  navigation 
of  any  sort;    that  marsh  grass  grows  above  its  surface; 

1  Cain  V.  Simonson,  39  So.  571. 

"  Lord  Hale,  De  Juris  Maris,  Chap.  IV. ;  Adams  v.  Pease,  2  Conn.  481 ; 
Hubbard  v.  Hubbard,  8  N.  Y.  196. 
»  111.  Steel  Co.  V.  BHot,  109  Wis.  418. 

*  Noyes  v.  Collins,  92  Iowa,  566. 

*  Minnetonka  Lake  Improvement,  case,  56  Minn.  613. 


94  Law  for  the  American  Farmer 

that  its  bed  is  not  always  submerged ;  and  that  it  is  popu- 
larly known  as  a  marsh, ^ 

§  64.     Water-courses. 

A  mere  inlet  from  the  sea  filled  and  emptied  more  or 
less  by  the  action  of  the  tides  is  not  a  water-course.^  A 
water-course  is  a  channel  or  canal  for  conveying  water, 
particularly  in  the  drainage  of  lands;  it  may  be  natural 
or  artificial,  but  it  must  have  a  bed,  a  distinct  channel,  and 
defined  banks  traversing  the  soil.''  It  is  a  stream  of 
water  running  in  a  certain  direction  in  a  channel  between 
well-defined  banks.*  It  is  a  living  stream  with  definite 
banks,  a  channel,  and  a  mouth  distinguishable  from  its 
source,  fed  by  something  more  permanent  than  mere  sur- 
face water.^  Mere  gullies  of  running  water  fed  by  occa- 
sional rains  or  melting  snows  are  not  water-courses.^  A 
water-course,  however,  does  not  cease  to  be  such  by  now 
and  then  running  dry,''  nor  by  spreading  out  in  places  into 
swamps  and  marshes,^  yet  it  does  not  mean  a  mere  slough.* 
The  volume  of  water  flowing  in  a  stream  does  not  affect  its 
character  as  a  water-course ;  ^^  neither  does  the  size  of  a 
stream  determine  whether  or  not  it  is  a  river. ^'     The  chan- 

1  111.  steel  Co.  V.  Bilot,  supra. 

*  Chamberlain  v.  Hemingway,  63  Conn.  1. 
»  Hawley  v.  Sheldon,  64  Vt.  491. 

*  Simmons  v.  Winters,  21  Ore.  35. 

*  Chamberlain  v.  Hemingway,  supra. 

«  Simmons  v.  Winters,  supra;   Gregory  v.  Bush,  64  Mich.  37. 

^  Spangler  v.  San  Francisco,  84  Cal.  12  ;  Hawley  v.  Sheldon  ;  and  Sim- 
mons V.  Winters,  supra.  *  Case  v.  Hoffman,  84  Wis.  438 ; 

»  Bloodgood  V.  Ayers,  108  N.  Y.  400. 
!»  Maxwell  v.  Shirts,  27  Ind.  App.  529. 
"  111.  Steel  Co.  V.  Bilot,  supra. 


The  Waters  of  the  Farm  95 

nel  of  a  stream  is  its  bed,  more  especially  the  deeper  part 
of  the  bed  where  the  main  current  flows,  and,  if  navigable, 
the  line  of  deep  water  followed  by  vessels,  where  they  may 
and  usually  do  pass  each  other.  ^ 

§  65.     Navigable  streams. 

Running  streams  are  either  public  or  private,  and 
whether  any  particular  stream  is  public  or  private  depends 
upon  whether  it  is  or  is  not  navigable.^  If  it  is  navigable, 
it  is  public,  although  its  bed  may  be  owned  by  private 
riparian  owners.^  A  navigable  stream  is  a  public  highway 
and  must  not  be  obstructed,^  but  the  owner  of  both  sides 
of  a  stream  not  navigable  has  a  right  to  build  and  maintain 
a  fence  across  it.^  The  government  alone  has  the  right  to 
establish  a  ferry  across  a  navigable  stream ;  it  is  not  a 
matter  of  private  right,^  although  any  private  person  may 
rightfully  keep  and  use  a  boat  for  himself,  his  family,  his 
servants,  and  even  to  carry  a  guest  in  crossing  a  public 
river  without  running  a  ferry  or  infringing  on  a  ferry 
franchise^  All  streams  which  are  channels  for  useful 
commerce  are  esteemed  navigable  and  are  classed  as  public 
highways ;  ^  they  are  natural  highways,  and  the  public 
easement  in  them,  whatever  its  extent,  is  paramount  to 
private  riparian  rights.^     The  courts  are  not  agreed  upon 

1  Buttenuth  v.  St.  Louis  B.  Co.,  123  111.  535. 

*  Fulmer  v.  Williams,  122  Pa.  St.  191. 

5  Willow  Riv.  Club  v.  Wade,  100  Wis.  86. 

■•  Morrison  v.  Coleman,  87  Ala.  655. 

5  Griffith  V.  Holman,  23  Wash.  347. 

«  Mills  V.  St.  Clair  Co.,  8  How.  569.     '  Peru  v.  Barrett,  100  Me.  2ia 

8  Farmers'  Co-op.  Mfg.  Co.  v.  Albemarle  &  Ral.  R.  R.,  117  N.  C.  679. 

»  Burke  Co.  Com'rs.  v.  Catawba  Lum.  Co.,  116  N.  C.  731. 


96  Law  for  the  American  Farmer 

what  constitutes  a  stream  a  navigable  one.  At  common 
law  streams  were  navigable  no  farther  than  tide  water  ex- 
tended.^ In  New  Jersey  the  test  of  whether  a  stream  is 
public  or  private  is,  Does  the  tide  ebb  and  flow  there  ?  and 
not  whether  it  is  or  is  not  navigable  in  fact.^  In  North 
Carolina  streams  are  not  considered  navigable  unless  they 
can  be  navigated  by  sea-going  vessels.^  On  the  other  hand, 
the  United  States'  Supreme  Court  has  said  that  any  sort 
of  a  vessel  that  can  float  upon  water,  whether  driven  by 
steam,  wind,  or  muscular  power,  may  be  an  instrument  of 
commerce  and  transportation,  and  if  it  is  used  for  some 
useful  purpose  of  trade,  it  makes  the  stream  on  which  it 
plies  navigable,*  and  that  rivers  which  are  navigable  in  fact 
are  public  navigable  rivers  in  law.^  Navigability  in  fact  is 
enough  in  both  Pennsylvania®  and  Minnesota^  to  make  a 
stream  a  navigable  one  in  law.  The  navigability  of  a 
stream  depends  upon  its  capacity  to  accommodate  boats 
used  for  navigation  and  not  upon  the  actual  commerce 
carried  on  over  its  surface.^  A  stream  may  be  navigable 
although  it  is  too  shallow  in  places  to  allow  the  passage  of 
boats  over  all  parts  of  it,^  and  it  is  navigable  if  it  affords 
passage  for  boats  and  barges  up  and  down  at  certain  sea- 
sons of  the  year.^''     It  must,  of  course,  contain  enough 

1  Hardin  v.  Jordan,  140  U.  S.  371. 

«  Grey  v.  City  of  Paterson,  60  N.  J.  Eq.  385. 

3  State  V.  Eason,  114  N.  C.  787. 

*  The  Montello  case,  20  Wall,  430. 

^  Ibid.  ^  Fulmer  v.  Williams,  supra. 

'  Lamprey  v.  State,  52  Minn.  181. 

8  Ileyward  v.  Farmers'  Min.  Co.,  42  S.  C.  138. 

9  St.  Anthony  Falls  Water  Power  Co.  v.  Bd.  of  Water  Com'rs,  168 
U.  S.  349. 

1"  Miller  v.  Enterprise  Canal  Co.,  142  Cal.  208. 


The  Waters  of  the  Farm  97 

water  to  fit  it  for  transportation  for  at  least  a  goodly  part 
of  the  year;  ^  for  if  most  of  the  time  it  is  too  shallow  to  ac- 
commodate any  vessels  except  row-boats  used  for  pleasure, 
and  has  never  been  actually  navigated,  it  is  not  navigable.^ 
A  river  not  navigable  in  its  natural  state  cannot  be  con- 
verted into  a  navigable  stream  by  artificial  works  destruc- 
tive of  riparian  rights,  without  making  compensation  to 
the  riparian  proprietors.^  The  repeal  of  a  statute  which 
declared  a  river  a  public  highway  does  not  operate  to  ex- 
tend riparian  titles  to  the  middle  of  the  stream/  A  natural 
water-course,  being  a  natural  easement,  is  placed  on  the 
same  basis  in  many  respects  as  to  the  public  right  as  is  a 
public  highway.^ 

§  66.     Floatable  streams. 

A  stream  that  is  not  large  enough  and  deep  enough  to  be 
navigable  in  the  technical  sense,  but  which  is  of  sufficient 
volume  to  float  rafts  or  logs  to  market,  is  termed  a  "float- 
able" stream.^  If  a  stream  is  almost  or  quite  always  deep 
enough  and  strong  enough  to  float  down  logs,  it  is  a  public 
stream  and  classed  as  navigable/  The  rights  of  the  public 
in  a  stream  used  to  float  logs  are  measured  by  its  capacity 
in  its  normal  state.^     That  logs,  poles,  and  rafts  are  floated 

1  Morrison  v.  Coleman,  supra.  ^  Griffith  v.  Holman,  supra. 

3  Peo.  V.  Economy  Lt.  &  P.  Co.,  241  lU.  290. 

*  Steele  v.  Sanchez,  72  Iowa,  65. 

*  C.  B.  &  Q.  R.  R.  V.  Peo.,  212  111.  103. 

«  Gerrish  v.  Brown,  51  Me.  256 ;  Gaston  v.  Mace,  33  W.  Va.  14 ; 
Parker  v.  Hastings,  123  N.  C.  671. 

'Haines  v.  Hall,  17  Ore.  165;  Willow  Riv.  Club  v.  Wade,  supra; 
Watkins  v.  Dorris,  24  Wash.  636. 

8  Stratton  v.  Currier,  81  Me.  497  ;  Conn.  Riv.  Lum.  Co.  v.  Olcott  Falls 
Co.,  65  N.  H.  290. 

H 


98  Law  for  the  American  Farmer 

down  a  stream  occasionally  when  the  water  is  high  does 
not  make  it  navigable.^  The  natural  flow  of  a  stream 
cannot  lawfully  be  held  back  in  storage  by  upper  proprie- 
tors and  let  loose  in  floods  in  order  to  carry  down  floating 
timber  if  thereby  lower  proprietors  suffer  damage ;  ^  un- 
less, indeed,  the  legislature  by  statute  confers  a  right  to 
build  a  storage  dam  and  impound  the  waters  and  to  open 
the  dam  from  time  to  time  to  float  logs  downstream.^ 
The  owner  of  logs  floated  carefully  and  prudently  down  a 
public  stream  is  not  liable  for  any  consequential  damages 
to  lower  riparian  lands.*  If  the  logs  are  driven  in  a  careful 
and  prudent  way,  there  is  no  liability,^  but  the  careless  or 
reckless  log-driver  is  liable  for  damages  caused  by  Jams  to 
shore  lands.®  The  right  to  float  timber  down  a  stream 
gives  the  log-driver  no  right  to  use  the  banks  in  aid  of  his 
work ;  if  he  fastens  booms  to  trees  on  the  banks,  he  is  a 
trespasser ;  ^  he  must  not  trespass  on  the  banks  to  break 
jams  and  facilitate  the  drive.^  One  who  puts  logs  upon  the 
ice  of  a  stream  and  gives  them  no  further  attention  renders 
himself  liable  for  injuries  caused  to  a  lower  landowner  by  the 
cutting  of  a  new  channel  through  his  land  in  consequence  of 
the  formation  of  a  dam  by  the  logs  and  broken  ice  in  the 

1  U.  S.  V.  Rio  Grande  Dam  Co.,  174  U.  S.  690. 

2  Brewster  v.  Rogers  Co.,  169  N.  Y.  73;  Monroe  Mill  Co.  v.  Menzel, 
35  Wash.  487. 

3  Brooks  V.  Cedar  Brook  Co.,  82  Me.  17. 

*  Thompson  v.  Androscoggin  River  Improv.  Co.,  54  N.  H.  558 ;  Field 
V.  Apple  River  Log  Co.,  67  Wis.  569;  White  River  Log  Co.  v.  Nelson, 
45  Mich.  578. 

s  Coyne  ».  Miss.  &  Red  Riv.  Boom  Co.,  72  Minn.  533. 

*  Watkins  v.  Dorris,  supra. 

'  Smith  V.  Atkins,  110  Ky.  119. 

*  Monroe  Mill  Co.  v.  Menzel,  supra. 


The  Waters  of  the  Farm  99 

spring.^  A  statute  of  Wisconsin  gives  log-drivers  a  right  to 
compensation  for  driving,  of  necessity,  logs  that  get  tangled 
with  their  own  at  the  beginning  of  or  along  the  drive. ^ 

§  67.     What  is  meant  by  riparian. 

The  word  "riparian"  is  derived  from  the  Latin  word 
"  ripa, "  which  means  the  shore  of  a  river.^  Strictly  speak- 
ing, when  it  is  applied  to  a  landowner  the  word  refers  to  the 
proprietor  of  the  bank  of  an  unnavigable  stream.'*  When 
the  proprietorship  of  land  bordering  upon  the  shore  of 
tidal  waters  is  meant,  the  proper  word  is  "httoral."^ 
In  practice,  however,  little  or  no  distinction  is  made.^ 
Land  is  riparian  only  when  waters  flow  over  it  or  along  its 
border.'^  The  authorities  generally  limit  the  extent  of 
riparian  land  to  the  watershed  of  the  stream,  and  hold 
that  upland  beyond,  although  a  part  of  a  single  tract  under 
one  ownership  with  the  bank  of  the  stream,  cannot  be 
deemed  riparian;  but  in  some  states  this  is  not  the  rule. 
When  land  bordering  on  a  navigable  stream  is  perma- 
nently submerged  or  washed  away,  it  is  lost  to  the  owner 
and  can  be  regained  only  by  accretion  afterwards.* 

§  68.     Riparian  rights. 

Water  is  the  common  and  equal  property  of  every  one 
through  whose  land  it  flows,  and  the  right  of  each  land- 

1  George  v.  Fisk,  32  N.  H.  32. 

2  Wise.  Riv.  Log  Asso.  v.  Comstock  Lum.  Co.,  72  Wis.  464. 

3  Bathgate  v.  Irvine,  126  Cal.  135.       "  Gough  v.  Bell,  22  N.  J.  L.  441. 

6  Ibid.  «  Com.  v.  Roxbury,  75  Mass.  451. 

7  Crawford  Co.  v.  Hathaway,  67  Neb.  325. 
«  Cox  V.  Arnold,  129  Mo.  337. 


100  Law  for  the  American  Farmer 

owner  to  use  and  consume  it  without  destroying  or  un- 
reasonably impairing  the  rights  of  others  is  the  same.^ 
An  owner  of  land  bordering  on  a  running  stream  has  a 
right  to  have  its  waters  flow  naturally,  and  none  can  law- 
fully divert  them  without  his  consent.^  Each  riparian 
proprietor  has  an  equal  right  with  all  the  others  to  have 
the  stream  flow  in  its  natural  way  without  substantial 
reduction  in  volume  or  deterioration  in  quality  subject  to 
a  proper  and  reasonable  use  of  its  waters  for  domestic, 
agricultural,  and  manufacturing  purposes,^  and  he  is  en- 
titled to  use  it  himself  for  such  purposes,  but  in  doing  so 
must  not  substantially  injure  others."*  In  addition  to 
the  right  of  drawing  water  for  the  purposes  just  men- 
tioned, a  riparian  proprietor,  if  he  duly  regards  the  rights 
of  others,  and  does  not  unreasonably  deplete  the  supply, 
has  also  a  right  to  take  the  water  for  some  other  proper 
uses.  The  most  important  of  these,  irrigation,  is  the 
subject  of  another  chapter.  If  a  landowner  uses  the 
water  of  a  stream  in  a  reasonable  and  lawful  way  with- 
out malice  or  negligence  and  an  injury  results  to  his 
neighbor  below,  he  is  not  answerable  in  damages.^ 
A  public  water  company  owning  land  upon  a 
stream  cannot,  without  making  due  compensation, 
prevent  an  upper  landowner  through  whose  pasture 
the  stream  flows  from  pasturing  his  cattle  in  that  pas- 
ture in  an  ordinary  way,  even  though  the  stock  fouls 

1  Tenn.  Coal,  Iron  &  R.  R.  Co.  v.  Hamilton,  100  Ala.  252. 

2  Sturr  V.  Beck,  133  U.  S.  541. 

3  Ulbricht  v.  Eufaula  Water  Co.,  86  Ala.  587  ;  Clark  v.  Penn'a.  R.  R., 
145  Pa.  St.  438. 

*  Howard  v.  IngersoU,  13  How.  381  ;  Holj^oke  Water  P.  Co.  v.  Lyman, 
15  Wall.  500.  *  Barnard  v.  Sherley,  135  Ind.  547. 


The  Waters  of  the  Farm  101 

the  stream.*  An  upper  landowner  has  a  perfect  right  to 
use  the  bordering  stream  in  a  proper  and  reasonable  man- 
ner, although  in  doing  so  he  makes  its  water  unfit  to  drink. 
For  example,  he  cannot  be  denied  his  right  to  bathe  in  the 
stream,  that  is,  without  condemnation  and  compensation, 
because  a  municipality  lower  down  takes  its  water  supply 
from  the  stream.- 

§  69.     Riparian  duty  to  refrain  from  polluting  the  stream. 

A  riparian  proprietor  will  not  be  allowed  to  pollute  the 
stream  on  which  his  land  borders  by  casting  into  it  waste, 
chemicals,  or  foreign  noxious  and  offensive  matter  from 
mills,  mines,  or  factories  to  the  damage  of  a  lower  owner.^ 
A  lower  proprietor  is  entitled  to  an  injunction  against  an 
upper  one  who  persists  in  polluting  the  stream.^  A  city  or 
town  which  discharges  its  sewage  into  and  pollutes  a 
natural  stream  so  as  to  render  its  water  unfit  for  domestic 
use  is  liable  in  damages  for  the  nuisance  to  a  lower  pro- 
prietor who  suffers  in  consequence.^  A  dairy  man  owning 
land  upon  a  stream,  who  needs  a  constant  and  an  abundant 
supply  of  pure  and  wholesome  water  for  use  and  for  his 
stock,  may  recover  damages  from  a  prison  association  own- 
ing land  and  maintaining  a  prison  up-stream  and  continu- 
ally polluting  its  waters  with  discharges  from  the  baths 
and  privies  of  several  hundred  prisoners.® 

1  Helfrich  v.  Catonsville  Water  Co.,  74  Md.  269. 

2  Peo.  V.  Hulbert,  131  Mich.  156. 

'  Drake  v.  Lady  Ensley  Coal  Co.,  102  Ala.  501 ;  Weston  Paper  Co.  v. 
Pope,  155  Ind.  394  ;   Strobel  v.  Kerr  Salt  Co.,  164  N.  Y.  303. 

*  MacNamara  v.  Taft,  196  Mass.  597. 

6  Mansfield  v.  Bristor,  76  Ohio  St.  270 ;  Markwardt  v.  Guthrie,  18 
Okla.  32.  •  Trevett  v.  Va.  Prison  Asso.,  98  Va.  332. 


102  Law  for  the  Atnerican  Farmer 

§  70.     Riparian  right  to  access  and  wharfs. 

Every  riparian  proprietor  is  entitled  to  free  access  to 
the  navigable  part  of  the  water  in  front  of  his  land.^  The 
measure  of  damages  for  cutting  off  an  upland  owner's 
access  to  a  river  in  front  of  his  land  is  the  difference  in  the 
rental  value  of  such  land  with  and  without  the  access.^ 
A  riparian  owner  has  a  right  to  build  a  wharf  or  pier  be- 
tween high  and  low  water  mark  in  front  of  his  premises.^ 
The  right  of  a  riparian  owner  upon  a  floatable  stream  to 
build  a  dam  and  divert  the  water  for  power  is  limited  to 
the  extent  to  which  he  can  do  so  and  not  interfere  with 
the  rights  of  the  public*  The  governmental  power  of  the 
state  over  waters  is  never  lost,^  and  any  regulation  by 
statute  of  riparian  rights  which  makes  for  the  general  ad- 
vantage of  the  riparian  proprietors  will  be  upheld  by  the 
courts  as  a  reasonable  exercise  of  that  power.^  A  riparian 
right  is  not  lost  by  neglect  to  use  or  exercise  itJ 

§  71.     Surface  waters  defined. 

Ordinarily,  surface  waters  originate  in  falling  rains  or 
melting  snows,^  but  overflows  from  streams  in  times  of 

1  Button  V.  strong,  1  Black,  1 ;  Yates  v.  Milwaukee,  10  Wall.  497. 

2  Rumsey  v.  N.  Y.  &  Eng.  Ry.,  133  N.  Y.  79. 

'  Boston  V.  Leelaw,  17  How.  426 ;  Potomac  Steamb.  Co.  v.  Upper 
Potomac  Steamb.  Co.,  109  U.  S.  672. 

^  Conn.  Riv.  Lum.  Co.  v.  Olcott  Falls  Co.,  supra. 

6  Auburn  v.  Union  Water  Power  Co.,  90  Me.  576. 

6  Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.  9. 

'  Whitney  v.  Wheeler  Cotton  Mills,  151  Mass.  396. 

8  Morrissey  v.  C.  B.  &  Q.  R.  R.,  38  Neb.  406 ;  Crawford  v.  Rambo, 
44  Ohio  St.  279. 


The  Waters  of  the  Farm  103 

freshets  are  surface  waters.^  Surface  waters  are  of  a  casual 
and  vagrant  character,  oozing  through  the  soil,  diffusing 
themselves  over  it,  and  following  no  particular  course.^ 
They  are  waters  that  lie  upon,  overspread,  or  percolate  the 
soil,  and  flow  in  no  particular  direction.^  Water  from  rains 
and  melting  snows  spreading  over  the  ground  is  surface 
water  until  it  converges  into  a  defined  channel  in  which 
thenceforward  it  continues  to  flow.*  Surface  waters 
include  water  carried  off  by  surface  drainage ;  ^  they  are 
such  as  are  shed  and  passed  from  the  lands  of  one  person  to 
another  without  having  any  distinct  or  defined  channel.^ 
A  pool  in  a  hollow  filled  by  rains  that  fall  upon  the  neigh- 
boring highlands,  and  which  has  no  outlet  and  parts  with 
its  water  only  by  evaporation  or  seepage,  and  occasionally 
dries  up  altogether,  is  surface  waterJ 

§  72.     Disposal  of  surface  water. 

The  right  one  has  to  have  water  flow  to  or  from  his  land 
or  mill  over  and  across  the  land  of  another  is  an  example 
of  an  incorporeal  hereditament.^  The  owner  of  the  upper 
of  two  adjoining  tracts  of  land  has  a  natural  easement  to 
have  the  surface  water  which  falls  upon  his  land  flow  off 
to  the  lower  tract,^  and  the  owner  of  land  next  to  a  river 

1  Shane  v.  Kan.  C,  St.  Jo.,  &  C.  B.  R.  R.,  71  Mo.  237  ;  Jean  v.  Penn'a 
Co.,  9  Ind.  App.  56. 

2  Lawton  v.  So.  Bound  R.  R.,  61  S.  Car.  548. 
^  Case  V.  Hoffman,  supra. 

<  C.  B.  &  Q.  R.  R,  V.  Emmert,  5-3  Neb.  237. 

6  Bunderson  v.  Burl.  &  M.  Riv.  R.  R.,  43  id.  545. 

«  Tampa  Water  W'ks  v.  Cline,    37  Fla.  586. 

'  Brandenberg  v.  Zeigler,  62  S.  Car.  18. 

*  Gary  v.  Daniels,  46  Mass.  236. 

»  Totel  V.  Bonnefoy,  123  III.  653. 


104  Law  for  the  American  Farmer 

with  a  levee  upon  its  bank  has  an  easement  to  have  the 
seepage  water  flow  unobstructed  from  his  to  adjoining 
lower  land.^  Every  landowner  may  turn  surface  water 
away  from  his  land  to  his  neighbor's,  and  the  neighbor 
has  no  remedy  except  to  pass  it  on ;  -  nobody  is  subject 
to  an  action  for  deflecting  surface  water  from  his  own  to 
lower  land  in  the  proper  use  and  improvement  of  his  own 
land,  unless  he  is  negligent  or  vindictive;  the  recipient 
must  pass  it  along.^  At  common  law  surface  water  was 
always  regarded  as  a  common  enemy  which  every  land- 
owner for  the  protection  of  his  own  property  was  at  liberty 
to  cast  upon  neighboring  land  even  if  thereby  he  damaged 
the  latter.^  And  in  some  states  this  rule  of  the  common 
law  still  prevails;^  in  other  states  the  rule  has  undergone 
some  modification.  In  New  Hampshire  a  landowner's 
right  to  defend  his  land  from  surface  water  is  restricted  to 
what  is  reasonable  in  the  circumstances  and  having  in  view 
the  effect  of  his  acts  upon  neighboring  land,^  and  in  Iowa 
the  right  to  interfere  with  the  surface  water  is  limited  by  the 
rule  that  one  who  improves  his  own  land  must  do  it  in 
such  a  way  as  to  cause  his  neighbor  no  unnecessary  inj  ury7 
This  is  also  the  rule  in  Nebraska.^  The  rule  undoubtedly 
is,  according  to  the  Illinois  Supreme  Court,  that  the  owner 
of  a  higher  tract  of  land  has  a  right  to  have  the  surface 

»  Gray  v.  McWilliams,  98  Cal.  157. 
2  Johnson  v.  Chi.,  St.  P.  M.  &  O.  R.  R.,  80  Wis.  641. 
»  Churchill  v.  Beethe,  48  Neb.  87 ;  Jessop  v.  Bamford  Silk  Co.,  66  N.  J. 
L.  641. 

*  Edwards  v.  Char.  C.  &  A.  R.  R.,  39  S.  Car.  472. 

6  Ibid. 

«  Franklin  v.  Durgeo,  71  N.  H.  186. 

»  Willitts  V.  Chi.  B.  &  K.  C.  R.  R.,  88  Iowa,  281. 

8  Beatrice  v.  Leary,  45  Neb.  149. 


The  Waters  of  the  Farm  105 

water  that  falls  or  comes  naturally  upon  his  land  pass  off 
through  natural  drains  upon  or  over  the  adjoining  lower 
lands;  and  he  has  a  right  also  by  ditches  and  drains  to 
conduct  such  surface  water  into  the  channels  which  nature 
has  provided,  even  though  he  thereby  raises  the  quantity 
of  water  thrown  upon  the  neighboring  land ;  but  he  has 
no  right  to  cut  away  natural  barriers  to  let  down  water 
upon  the  adjoining  lands  which  naturally  would  not  flow 
in  that  direction.^ 

§  73.    Restrictions  on  the  disposition  of  surface  waters. 

The  right  of  a  landowner  to  cast  surface  water  upon 
neighboring  land  does  not  authorize  him  to  gather  it  in 
basins  and  discharge  it  in  floods  by  artificial  means.^ 
No  landowner  has  a  right  to  concentrate  surface  water  and 
throw  it  bodily  upon  his  neighbor's  land.^  Any  one  who 
collects  surface  water  in  artificial  channels  and  casts  it  upon 
his  neighbor's  land  commits  a  nuisance  for  which  he  must 
answer  in  damages  ;  ^  but  one  who  owns  a  hill-slope  at  the 
foot  of  which  is  another's  mill-pond  is  not  liable  for  filling 
the  pond  with  his  surface  water  in  the  course  of  cultivating, 
manuring,  and  draining  his  land  in  the  ordinary  way  of 
husbandry.^  A  landowner  has  no  right  by  means  of 
drains  to  and  along  a  highway  to  cast  surface  water  on  his 
neighbor's  land  on  its  way  to  a  ravine  that  might  have  been 

1  Dayton  v.  Drainage  Com'r,  128  111.  271 ;  Lambert  v.  Alcorn,  144  id, 
313. 

2  Todd  V.  York  Co.,  66  L.  R.  A.  561. 

3  Mayor  v.  Sikes,  94  Ga.  30 ;  Fremont,  etc.,  R.  R,  v.  Marley,  26  Neb. 
138. 

4  Paddock  v.  Somes,  102  Mo.  226. 

5  Middlesex  Co.  v.  McCue,  149  Mass.  103. 


106  Law  for  the  American  Farmer 

reached  directlj'^  from  his  own  premises.^  If  there  is  a 
drain  or  water-course  at  hand,  surface  water  must  be  sent 
into  it  and  not  cast  upon  neighboring  land.^  Although 
the  owner  of  highlands  may  not  collect  the  surface  waters 
in  one  place  and  cast  them  in  mass  upon  adjoining  land, 
yet  he  may  guide  and  quicken  their  flow  by  artificial  means 
into  hollows  and  along  gullies  formed  by  nature,  so  long  as 
the  increased  flow  does  not  deviate  from  the  natural 
course.^  A  landowner  acting  in  good  faith  in  improving 
and  tilling  his  land,  and  by  good  husbandry,  may  fill  in 
sag  holes  upon  it,  so  that  surface  water  will  not  gather 
nor  remain  there,  even  though  the  result  is  that  such  water 
finds  its  way  in  greater  quantities  to  the  adjacent  lowlands ; 
but  he  must  not  by  artificial  drains  collect  the  water  of 
pools,  ponds,  or  basins  on  his  land  and  throw  it  in  a  body 
on  the  land  of  his  neighbor.^  Surface  water  flowing  nat- 
urally in  a  defined  course  toward  a  near-by  stream  must 
not  be  obstructed  or  interfered  with  so  as  to  be  cast  back 
to  the  injury  of  land  it  is  leaving.^ 

§  74.      Underground  and  'percolating  waters. 

Water  naturally  percolating  through  the  soil  is  a  part 
of  that  soil,®  and  percolating  sub-surface  water  that  does 
not  flow  in  a  natural  channel  as  a  defined  stream  may  be 
intercepted  and  diverted  by  a  landovvTier  under  whose 

1  Jacobson  v.  Van  Boening,  48  Neb.  80. 

2  Sheehan  v.  Flynn,  59  Minn.  436. 

3  Ribordy  ».  Murray,  177  111.  134 ;  Rhoads  v.  Davidheiser,  133  Pa.  St. 
226;   Shaw  v.  Ward,  131  Wis.  646. 

*  Launstein  v.  Launstein,  150  Micb.  524. 
'  Wharton  ».  Stevens,  84  Iowa,  107. 
«  Edwards  v.  Haeger,  180  111.  99. 


The  Waters  of  the  Farm  107 

land  it  is  found.^  A  grant  of  a  spring  does  not  by  implica- 
tion convey  percolating  water  that  feeds  it  before  it 
reaches  the  spring.^  A  lando\Mier  has  an  unrestricted 
right  to  dig  a  well  upon  his  own  land  for  his  own  use,  and 
if  by  doing  so  he  draws  away  underground  waters  from 
his  neighbor's  well,  he  is  not  liable  for  the  damage ;  ^  he 
is  entitled  also  to  make  a  reasonable  use  of  a  stream  flowing 
beneath  the  surface  of  his  land,  even  though  it  supplies 
his  neighbor's  spring  or  well ;  ^  but  he  has  no  right  to  make 
merchandise  of  the  water  drawn  from  his  well  if  by  doing 
so  he  deprives  his  neighbor's  well  of  its  supply.^  No  land- 
owner will  be  permitted  to  draw,  collect,  or  divert  under- 
ground waters  on  his  own  lands  not  needed  for  any  useful 
purpose  and  merely  to  waste  them  wantonly  to  the  injury 
of  his  neighbor's  spring.^  A  landowner  may  tap  under- 
ground water  upon  his  own  land  for  any  useful  purpose 
without  incurring  any  hability  to  other  landowners 
in  the  neighborhood  whose  wells  and  springs  are  de- 
pleted by  his  acts,  provided  he  diverts  only  percolating 
waters  and  does  not  interfere  with  any  underground  water- 
course or  sub-surface  stream.^  A  subterranean  stream 
flowing  in  a  defined  channel  may  no  more  be  diverted  or 
polluted  by  the  owner  of  the  overlying  land  than  a  surface 
stream  may  by  the  riparian  proprietor.^    A  surface  land- 

•  Bloodgood  V.  Ayers,  supra.  2  Wheelock  v.  Jacobs,  70  Vt.  162. 
3  Houst.  &  T.  C.  R.  R.  V.  East,  98  Tex.  146. 

*  Miller  v.  Black  Rock  Sp'gs.  Co.,  99  Va.  747. 

6  Erickson  v.  Crookston  Water  W'ks.  100  Minn.  481. 

«  Stillwater  W.  Co.  v.  Farmer,  89  id.  58 ;  Barclay  v.  Abraham,  121 
Iowa,  619. 

'  Katz  V.  Walkinshaw,  141  Cal.  116;   Huber  v.  Merkel,  117  Wis.  355. 

«  Tampa  Water  W'ks.  v.  Cline,  supra;  Kinnaird  v.  Standard  Oil  Co., 
89  Ky.  468. 


108  Law  for  the  American  Farmer 

owner  who  permits  offensive  and  polluting  fluids  to  soak 
into  his  soil  and  impregnate  sub-surface  waters  that  feed 
the  wells  and  springs  of  his  neighbors,  making  them  dis- 
agreeable, unwholesome,  and  unfit  to  use,  is  liable  in 
damages.^  One  who  buries  the  carcass  of  a  dead 
animal  on  his  own  land,  which  pollutes  his  neighbor's 
spring,  is,  however,  only  liable  to  that  neighbor  if 
the  circumstances  are  such  that  a  reasonably  prudent 
person  ought  to  have  anticipated  such  an  effect.^  The 
escape  from  a  pipe  line  of  oil  brought  from  a  distance 
is  not  a  necessary  and  natural  incident  to  the  transpor- 
tation of  oil,  and,  when  injury  is  caused  by  such  escape 
by  percolation  to  adjacent  land,  the  owner  of  the  pipe 
line  is  liable  for  maintaining  a  nuisance  regardless  of 
any  question  of  negligence.^ 

§  75.    Ice. 

Ice  that  forms  on  a  stream  belongs  to  the  owner  of  its 
bed.^  It  belongs  to  the  owner  of  the  soil  under  the  water 
on  which  it  forms,  whether  that  water  is  wholly  or  only 
partly  upon  his  land.^  The  ice,  however,  which  forms 
upon  overflowed  land  taken  by  a  public  water  company  by 
right  of  eminent  domain  in  condemnation  proceedings  be- 
longs to  the  corporation  and  not  to  the  landowner.^  The 
rights  to  ice  formed  upon  a  stream  are  the  same  as  those 

1  Kinnaird  v.  Standard  Oil  Co.,  supra;   Beatrice   Gas  Co.  v.  Thomas 
41  Neb.  662. 

2  Long  V.  L.  &  N.  R.  R.,  13  L.  R.  A.  (N.  S.)  1063. 

3  Hauck  V.  Tide  Water  Pipe  Line,  153  Pa.  St.  366. 

*  State  V.  Pottmeyer,  33  Ind.  402. 
'  Bigelow  V.  Shaw,  65  Mich.  341. 

•  Wright  V.  Woodcock,  86  Me.  113. 


The  Waters  of  the  Farm  109 

to  the  water  of  that  stream.^  The  right  to  cut  and  remove 
ice  from  an  unnavigable  stream  belongs  to  the  riparian 
proprietor,  who  may  exercise  it  freely  for  his  own  use  and 
for  storage  or  sale,  provided  he  does  not  infringe  in  any 
way  upon  the  rights  of  the  lower  proprietors  by  sensibly 
diminishing  the  flow  of  the  stream.^  Natural  ice  is  per- 
sonal, not  real  property,^  and  belongs  to  the  tenant  and 
not  the  landlord,  unless  it  is  reserved  in  the  leased  The 
owner  of  land  on  a  public  river  or  lake,  even  when  he  has 
a  grant  from  the  state  of  the  land  under  water,  has  no  ex- 
clusive right,  as  against  individual  members  of  the  public, 
to  the  ice  which  forms  in  front  of  his  premises,^  The 
right  to  take  ice  from  public  navigable  waters  belongs  to  all 
the  people  alike.^  But  this  common  right  does  not  warrant 
the  cutting  and  removing  for  sale  of  such  large  quantities 
of  ice  as  to  lower  the  natural  level  of  the  waterJ  Staking 
off  the  banks  and  the  ice  upon  a  public  stream  or  body  of 
water  long  before  the  ice  is  ready  to  cut  or  thick  enough  to 
harvest,  with  the  purpose  of  garnering  it  later  when  it  be- 
comes merchantable,  is  not  sufficient  for  a  legal  appropria- 
tion ;  ^  it  is  otherwise,  however,  when  the  ice  is  in  a  state 
fit  for  immediate  sale  and  the  intention  is  to  cut  and  remove 
it  at  once.' 

1  Brown  v.  Cunningham,  82  Iowa,  512. 

2  Gehlen  v.  Knorr,  101  id.  700 ;  Eidemiller  Ice  Co.  v.  Guthrie,  42  Neb. 
238. 

'  Higgins  V.  Kusterer,  41  Mich.  318. 
*  Marsh  v.  McNider,  88  Iowa,  390. 

'  Slingerland  v.   International   Contr.   Co.,   169   N.  Y.   60;  Concord 
M'f'g.  Co.  V.  Robertson,  66  N.  H.  1. 
«  Rossmiller  v.  State,  114  Wis.  169. 
'  Sanborn  v.  Peo.  Ice  Co.,  82  Minn.  43. 
8  Becker  v.  Hall,  110  Iowa,  589.  •  Ibid. 


110  Law  for  the  American  Farmer 

§  76.     Liability  for  casualties. 

The  owner  of  a  pond  in  which  a  boy  drowns  while  skating 
or  bathing  is  not  liable  in  damages  for  his  death,  particu- 
larly where  the  boy  had  no  license  or  invitation  to  go  to  the 
pond  and  the  landowner  had  no  knowledge  of  his  presence 
there.^  But,  although  this  is  so,  even  if  no  precautions 
have  been  taken  to  guard  the  pond  and  keep  children  away 
from  the  water,^  it  is  none  the  less  wise  for  a  landowner 
upon  whose  land  there  is  a  sheet  or  stream  of  water  to 
which  children  have  access  to  take  some  little  pains  to 
prevent  accidents,  as  otherwise  it  may  be  both  trouble- 
some and  costly  to  escape  liability.  It  has  been  held  that 
one  who  maintains  an  unprotected  and  dangerous  reservoir 
of  water  in  an  open  field  near  a  highway  where  children 
resort  to  play  is  liable  for  the  death  by  drowning  of  a  child 
who  fell  into  the  water  while  at  play.^  And  the  owner  of 
a  deep  unguarded  pond  near  a  highway  in  which  a  horse 
was  drowned,  in  consequence  of  taking  fright  at  some  goats 
and  backing  off  the  road,  w^as  not  allowed  to  escape  hability 
for  the  death  of  the  animal  upon  the  plea  that  it  would  not 
have  happened  if  it  had  not  become  frightened.^  Although 
it  is  certainly  negligence  of  an  actionable  kind  to  leave 
unguarded  a  hole  made  by  cutting  ice  upon  public  waters 
near  a  line  of  travel  in  disobedience  of  a  statute,  it  does 

»  Arnold  v.  St.  Louis,  152  Mo.  173 ;  Moran  v.  PuUman  P.  C.  Co.,  134 
id.  641 ;  Cooper  v.  Overton,  102  Tenn.  211 ;  Stendel  v.  Boyd,  73  Minn. 
53;  Sav.  F.  &  W.  R.  R.  v.  Beavers,  113  Ga.  398;  Dobbins  v.  Mo.  K.  & 
T.  R.  R.,  91  Tex.  60. 

*  Sullivan  v.  Huidekoper,  27  Dist.  Col.  App.  154. 

3  Franks  v.  South.  Cotton  Oil  Co.,  12  L.  R.  A.  (N.  S.)  468. 

*  Strange  v.  Bodcaw  Luna.  Co.,  79  Ark.  490. 


The  Waters  of  the  Farm  111 

not  make  the  person  who  left  the  hole  that  waj'  liable  for 
the  loss  of  horses  that  plunge  in  and  are  drowned  while 
running  away  from  fright,  unless  the  guard  required  by- 
law would  have  prevented  the  casualty  had  it  been  in 
place.^ 

>  Sowles  V.  Moore,  65  Vt.  322. 


CHAPTER  XI 

IRRIGATION 

§§  77-90 

§  77.     Irrigation  at  common  law. 

Irrigation  has  been  defined  to  be  the  systematic  appli- 
cation of  water  to  land  in  order  to  promote  present  or 
prospective  vegetation.^  In  the  legal  as  well  as  in  the  pop- 
ular sense  in  the  United  States,  irrigation  is  the  artificial 
watering  of  land  adapted  and  devoted  to  agriculture  for 
the  purpose  of  raising  crops  of  the  products  of  the  soil.^ 
In  England,  whence  is  derived  the  body  of  the  common 
law  of  the  United  States,  rain  is  abundant  for  the  needs  of 
agriculture,  and  until  past  the  middle  of  the  last  century 
the  English  landowner's  occasional  use  of  his  riparian 
waters  to  irrigate  his  land  had  affected  so  slightly  the 
lower  proprietors  that  no  legal  rules  had  been  formulated 
recognizing  and  regulating  the  use  of  streams  for  such 
purpose.^  In  this  country  the  right  of  riparian  proprietors 
to  use  in  a  reasonable  way  and  to  a  limited  extent  the  waters 
of  adjacent  streams  for  the  irrigation  of  their  lands  was 
recognized  and  established  by  several  early  decisions  of 
the  courts  of  New  England.^    This  right,  however,  was 

1  Encyc.  Brit. 

2  Platte  Water  Co.  v.  No.  Colo.  Img.  Co.,  12  Colo.  525. 

'  Lord  Wensleydale  in  Chasemore  v.  Richards  (1859),  7  H.  L.  Cas.  349. 
<  Weston  V.  Alden,  8  Mass.  136 ;   Perkins  v.  Dow,  1  Root,  535 ;   Blaiy 
chard  v.  Baker,  8  Me.  266. 

112 


Irrigation  113 

strictly  a  riparian  right  and  governed  by  the  principles  of 
the  common  law  that  apply  to  riparian  rights,  and  where 
the  common  law  prevails,  a  riparian  owner  alone  has  the 
right  to  use  the  adjacent  waters  for  irrigation  ^  and  then 
only  to  irrigate  riparian  land.^  The  common  law  with 
respect  of  irrigation  is  the  law  of  riparian  right. 

§  78.    The  limits  of  the  right  at  common  law. 

Every  riparian  proprietor  may  rightfully  use  a  reason- 
able quantity  of  the  water  which  flows  by  or  through  his 
land  for  irrigation,  provided  sufficient  is  left  to  supply  the 
needs  of  the  several  other  proprietors.^  His  use  of  the 
water  must  be  reasonable  and  duly  regardful  of  the  equal 
rights  of  other  landowners  along  the  stream.^  He  must 
not  in  any  case  take  the  water  of  the  stream  to  irrigate  his 
land  when  his  doing  so  operates  to  destroy,  render  useless, 
or  materially  affect  the  use  of  the  water  for  proper  pur- 
poses by  lower  proprietors.^  Where  the  common  law 
prevails,  the  quantity  of  water  drawn  off  by  a  riparian 
proprietor  to  irrigate  his  land  must  not  be  so  great  as 
materially  to  reduce  the  volume  of  the  stream  to  the  sub- 
stantial injurj^  of  lower  proprietors;  such  a  use  is  un- 
reasonable." The  use  of  water  to  irrigate  riparian  land 
must  be  reasonable  in  view  of  the  size,  situation,  and  char- 
acter of  the  stream,  the  nature  of   the  country  through 

1  Hayden  v.  Long,  8  Ore.  244. 

2  Chauvet  v.  Hill,  9.3  Cal.  407 ;  Gould  v.  Eaton,  117  Cal.  539. 

3  Low  V.  Schaffer,  24  Ore.  239. 

4  Clark  V.  Allaman,  71  Kan.  206 ;  Crawford  Co.  v.  Hathaway,  67  Neb. 
325. 

6  Union  Mill.  &  Min.  Co.  v.  Ferris,  2  Sawy.  176. 
«  Lux  V.  Haggin,  69  Cal.  255. 
I 


114  Law  for  the  Arnerican  Fanner 

which  it  flows,  the  season  of  the  year,  and  the  needs  of 
other  riparian  owners.^  An  upper  owner  upon  a  stream 
of  water  has  no  right  prior  or  superior  to  that  of  a  lower  one 
to  use  the  water  to  irrigate  his  land ;  he  is  permitted  only 
to  divert  from  the  stream  as  much  as  shall  fairly  represent 
his  share  when  the  quantity  of  water  and  the  number  of 
persons  entitled  to  its  use  are  considered. ^  In  an  arid 
country  the  diversion  of  a  greater  quantity  of  water  for 
irrigation  will  naturally  be  tolerated  as  reasonable  than 
in  places  where  aridity  does  not  exist,  and  only  an  occa- 
sional drought  makes  irrigation  temporarily  necessary.' 
The  question  of  reasonableness  in  the  use  of  water  to  ir- 
rigate riparian  land  is  entirely  one  of  degree,  and  it  is  said 
to  be  not  only  difficult  but  impossible  to  define  precisely 
the  limits  dividing  a  permissible  from  an  unreasonable  use, 
although  usually  there  is  little  difficulty  in  deciding  whether 
a  particular  case  falls  upon  one  or  the  other  side  of  the 
division.*  The  method  employed  by  a  riparian  owner  to 
divert  the  water  to  irrigate  his  land  does  not  and  cannot  in 
any  wise  affect  the  legality  or  the  reasonableness  of  the 
diversion;^  thus,  if  the  riparian  land  which  needs  irrigating 
lies  so  high  above  the  surface  of  the  stream  that  water  will 
not  flow  to  it  by  the  force  of  gravity,  the  landowner  has  a 
perfect  right  to  raise  it  to  the  necessary  level  by  means  of 
pumps.^     Neither  is  the  manner  in  which  the  surplus 

1  Meng  V.  Coffee,  67  Neb.  500. 

2  Gould  V.  Stafford,  77  Cal.  66;  Jones  v.  Conn.,  39  Ore.  30;  Union 
Mill  &  Min.  Co.  v.  Dangberg,  81  Fed.  73. 

3  Lux  V.  Haggin,  supra. 

*  Embrey  v.  Owen,  20  L.  J.  Exch.  (N.  S.),  212. 
'  Charnock  v.  Higuerra,  111  Cal.  473. 


Irrigation  115 

water  diverted  for  irrigation  is  returned  to  the  stream  of 
any  consequence  to  a  lower  proprietor,  provided  it  reaches 
the  stream  above  his  land  and  in  an  uncontaminated  state. ^ 
A  riparian  owner  has  no  right  to  divert  more  water  than  he 
needs  to  irrigate  his  land  and  allow  the  surplus  to  evapo- 
rate, flow  elsewhere,  or  find  its  way  back  to  the  stream  as 
best  it  may.^  The  area  of  riparian  land  Ij^ing  along  a 
stream  which  a  single  proprietor  may  irrigate  with  its 
waters  is  governed  by  the  principle  of  equality  of  right 
with  other  riparian  o^mers  and  does  not  depend  upon 
governmental  division  lines.^  It  is  the  physical  condi- 
tions of  land  bordering  upon  a  stream  which  detennine 
whether  or  not  it  is  riparian  so  as  to  be  entitled  to  be  irri- 
gated with  water  from  the  stream  and  not  the  govern- 
mental lines  nor  j^et  the  circumstance  that  the  land  was 
acquired  from  sundry  grantors  of  whom  some  were  not 
riparian  owners.'*  If,  however,  there  are  no  other  circum- 
stances to  decide  the  matter,  it  is  said  the  boundaries  of 
the  government  sub-divisions,  so  far  as  they  lie  within  the 
watershed,  will  control.^ 

§  79.     The  doctrine  of  appropriation. 

The  arid  region  of  the  United  States,  in  which  irrigation 
is  absolutely  essential  to  the  profitable  cultivation  of  the 
land,  is  of  vast  extent.  It  covers  a  great  deal  of  the  area 
of  the  Pacific  states,  more  of  that  of  the  mountain  states, 

1  Gould  V.  Eaton,  supra. 

«  Union  Mill.  &  Min.  Co.  v.  Ferris,  supra. 

'  Clark  V.  Allaman,  supra. 

*  Jones  V.  Conn,  supra. 

*  Watkins  Land  Co.  v.  Clements,  98  Tex.  578, 


116  Law  for  the  American  Farmer 

Arizona  and  New  Mexico,  and  considerable  tracts  in  the 
two  Dakotas,  Nebraska,  Kansas,  and  Texas..  In  several 
of  these  states,  the  common  law  of  riparian  rights  prevails 
in  respect  of  streams  privately  owned,  and  the  doctrine  of 
appropriation  is  accepted  in  respect  of  waters  upon  the 
public  lands.  In  Arizona,^  Colorado,  ^  Idaho,  ^  Nevada,* 
New  Mexico,^  Utah,^  and  Wyoming''  the  common  law 
doctrine  of  riparian  rights  concerning  irrigation  has  been 
abrogated  by  either  statutes  or  judicial  decisions  on  the 
ground  that  it  is  unsuited  to  the  prevalent  local  conditions 
of  climate  and  aridity.  In  its  place  has  been  accepted  the 
doctrine  "that  a  right  to  the  use  of  water  may  be  acquired 
by  priority  of  appropriation  for  beneficial  purposes  in 
contravention  to  the  common  law  rule  that  every  riparian 
owner  is  entitled  to  the  continued  natural  flow  of  the 
waters  of  the  stream  running  through  or  adjacent  to  his 
lands."  ^  The  power  of  a  state  to  abrogate  the  rules  of 
common  law  respecting  riparian  ownership  and  to  author- 
ize the  appropriation  of  flowing  waters  within  its  bound- 
aries for  such  beneficial  uses  as  the  legislature  may  deem 
wise  and  proper,  having  due  regard,  of  course,  to  rights 
already  vested,  is  beyond  question.^  Where  the  doctrine 
of  appropriation  prevails,  the  law  regards  the  appropria- 

1  Chandler  v.  Austin,  4  Ariz.  346. 

«  Oppenlander  v.  Left  Hand  Ditch  Ck).,  18  Colo.  142. 

'  Drake  v.  Earhart,  2  Idaho,  750. 

*  Bliss  V.  Grayson,  24  Nev.  422. 

'  Millheiser  v.  Long,  10  N.  Mex.  99. 
«  Stowell  V.  Johnson,  7  Utah,  215. 
^  Moyer  v.  Preston,  6  Wyo.  308. 

•  Farm  Invcs.  Co.  v.  Carpenter,  9  Wyo.  110. 

»  U.  S.  V.  Rio  Grande  Dam  &  Irrig.  Co.,  174  U.  S.  690 ;    Crawford  Co. 
V.  Hathaway,  supra. 


Irrigation  117 

tion  which  is  first  in  time  to  be  prior  in  right  and  as  con- 
stituting a  vested  right  which  the  courts  will  protect  and 
enforce.^  It  is  an  elementary  principle  of  the  law  of  ap- 
propriation that  he  who  first  appropriates  water  for  irriga- 
tion is  entitled  to  the  quantity  he  takes  and  uses  to  the 
exclusion  of  subsequent  claimants  by  either  appropriation 
or  right  of  riparian  ownership. ^ 

§  80.     Making  an  appropriation. 

In  the  doctrine  of  appropriation,  an  appropriation  con- 
sists in  the  diversion  of  water  by  some  adequate  means 
and  its  application  to  a  beneficial  use.^  The  mere  diver- 
sion of  water,  unaccompanied  by  an  intention  to  put  it  to  a 
beneficial  use,  does  not  constitute  a  legal  appropriation  of 
it.*  There  must  be  both  an  intent  to  take  the  water  for 
some  beneficial  use  and  some  open  physical  manifestation 
of  that  intent.^  In  many  of  the  arid  states  local  customs 
confirmed  by  statutes  require  that  one  who  would  ap- 
propriate water  shall  conspicuously  post  at  the  point 
where  he  purposes  diverting  it  a  written  notice  of  his 
claim  to  a  stated  quantity  of  water,  setting  forth  the  use  to 
which  he  means  to  put  it,  the  place  where  he  intends  to 
use  it,  and  the  way  he  designs  to  divert  it.  If  there  is  a 
statute  upon  the  subject,  usually  it  requires  a  public  record 

1  Low  V.  Schaffer,  supra. 

2  Longmire  v.  Smith,  26  Wash.  439. 

3  Moyer  v.  Preston,  supra. 

*  Combs  V.  Agric.  Ditch  Co.,  17  Colo.  146 ;  Power  v.  Switzer,  21  Mont. 
523 ;   Toohey  v.  Campbell,  24  id.  13. 

6  McDonald  v.  Bear  Riv.  Water  Co.,  13  Cal.  220;  Larimer  Co.  Res. 
Co.  V.  Peo.,  8  Colo.  614 ;  Ft.  Morgan  Land  &  Canal  Co.  v.  So.  Platte 
Ditch  Co.,  18  Colo.  1. 


118  Law  for  the  American  Farmer 

to  be  made  of  such  notice  within  a  definite  time  after  it  is 
posted. 1  When  there  is  such  a  statute,  a  strict  compHance 
with  its  requirements  is  a  condition  precedent  to  a  valid 
appropriation.^  Unless  and  until  some  statute  or  uni- 
versally acknowledged  custom  prescribes  what  must  be 
done  to  effect  an  appropriation  of  water  for  the  beneficial 
use  of  irrigating  the  soil,  a  settler  who  has  acquired  a  pos- 
sessory right  to  a  definite  tract  of  agricultural  land  in  an 
arid  region,  where  the  doctrine  of  appropriation  prevails, 
and  who  takes  up  his  residence  upon  such  tract  and  culti- 
vates it  by  aid  of  water  diverted  to  irrigate  the  soil,  does 
all  that  is  necessary  to  evince  an  intention  to  appropriate 
the  water  needed  for  the  irrigation  of  his  land ;  and  then 
if  afterwards  he  uses  such  water  continuously  for  that  pur- 
pose and  extends  with  reasonable  diligence  the  area  of  his 
land  under  cultivation,  the  courts  will  confirm  the  appro- 
priation of  the  quantity  used  and  required  by  him.^  The 
necessity  for  use,  the  actual  diversion,  and  beneficial  use 
of  the  water  are  the  fundamentals  in  the  acquisition  of  a 
water  right  by  appropriation.*  The  application  of  the 
water  to  a  beneficial  use  is  the  final  requisite  in  completing 
the  appropriation.^  This  actual  use  is  the  true  and  only 
final  test  to  determine  whether  an  appropriation  of  water 
has  been  completed.^  He  who  diverts  water  with  a  bona 
fide  intention  of  putting  it  to  a  beneficial  use  can  perfect 
his  right  only  by  actually  devoting  it  to  such  a  use  within 

'  Long  on  Irrig.,  Chap.  III.,  §  37, 

^  Ibid.,  cases  cited. 

'  Longmire  v.  Smith,  supra. 

*  Ison  V.  Sturgill,  109  Pac.  579. 

6Drach  v.  Isola,  109  Pac.  748. 

«  Nevada  Ditch  Co.  v.  Bennett,  30  Ore.  59. 


Irrigation  119 

a  reasonable  time.*  A  delay  caused  by  an  accident,  such, 
for  instance,  as  a  break  in  the  conduit,  is  excusable,^  but  a 
delay  for  two  years  to  make  an  irrigation  ditch,  during 
which  time  water  was  not  actually  needed  for  irrigating 
the  appropriator's  land,  is  deemed  an  abandonment  of  the 
appropriation.^  The  appropriation  of  the  waters  of  the 
stream  is  held  to  be  an  appropriation  of  all  the  tributary 
waters  above  the  point  of  diversion.* 

§  81.     The  quantity  of  water  that  may  he  taken  Jor  irrigation. 

The  right  at  common  law  of  a  riparian  owner  to  use  the 
water  of  the  adjacent  stream  to  assuage  the  thirst  of  him- 
self, his  family,  and  his  live-stock,  and  for  the  ordinary 
domestic  purposes,  culinary  and  ablutionary,  of  his  house- 
hold, is  usually  accounted  a  natural  right  supreme  above 
all  other  riparian  rights,  entitling  its  possessor  in  exercising 
it  wholly  to  exhaust  the  stream,  if  necessary,  without 
thereby  legally  wronging  lower  proprietors.^  Although 
this  has  been  criticized  as  too  broad  a  claim  in  some  re- 
spects,^ it  is  generally  considered  that  the  right  to  use  water 
for  irrigation  is  inferior  to  the  right  to  use  it  to  assuage  the 
thirst  of  man  and  in  the  preparation  of  human  food.^ 
Where  the  common  law  prevails,  the  right  of  a  riparian 

1  Peregoy  v.  McKissick,  79  Cal.  572 ;  Sieber  v.  Frink,  7  Colo.  148 ; 
Hague  V.  Nephi  Irrig.  Co.,  16  Utah.  421 ;   Power  v.  Switzer,  supra. 

2  Wells  V.  Kreyenhagon,  117  Cal.  329. 

3  Lamborn  v.  Bell,  18  Colo.  .346. 
*  Low  V.  Schaffer,  supra. 

6  Ibid.  See  also,  Farnham  on  Waters  and  Water  Rights,  Chap.  XXL. 
§§  600-601. 

5  Long  on  Irrig.,  Chap  IL,  §  17. 

"  Watkins  Land  Co.  v.  Clements  and  Low  v.  Schaffer,  supra. 


120  Law  for  the  American  Farmer 

proprietor  to  use  the  waters  of  an  adjacent  stream  is  un- 
deniably limited  to  the  abstraction  of  only  what  is  reason- 
able in  view  of  the  needs  and  rights  of  other  riparian 
owners,^  and  the  total  exhaustion  or  the  needless  diminu- 
tion of  the  stream  is  deemed  clearly  unreasonable.^  Where 
the  doctrine  of  appropriation  applies,  a  riparian  owner  or 
his  grantee  has  a  right  to  use  the  waters  of  a  stream  for 
irrigation  to  an  extent  that  at  common  law  would  be  con- 
sidered unreasonable.^  The  right  of  an  appropriator  of 
water  for  irrigation  is  measured  by  and  limited  to  the  quan- 
tity actually  necessary  to  irrigate  the  land  he  owns  which 
needs  artificially  apphed  moisture  to  render  it  productive.* 
No  right  is  acquired  in  water  diverted  for  irrigation  in  ex- 
cess of  actual  needs  and  use.^  If  the  capacity  of  the  ir- 
rigating ditch  is  beyond  what  is  necessary  to  irrigate  the 
owner's  farm,  he  is  restricted  to  the  quantity  he  actually 
needs  for  irrigation  over  and  above  what  he  requires  for 
domestic  use  and  to  water  his  stock.^  Once  an  appropria- 
tion has  been  made,  the  rights  of  the  appropriator  are 
fixed,  and  he  cannot  enlarge  the  use  of  the  water  at  the 
expense  of  other  appropriators.^  If  the  owner  of  a  ditch 
needs  more  water  for  irrigation  than  it  will  carry,  its  capac- 
ity is  the  limit  of  his  use  where  the  rights  of  others  have 
accrued.^     If  additional  water  is  found  to  be  needed  after 

1  Low  V.  Schaffer,  and  Meng  v.  Coffee,  supra. 

*  Meng  V.  Coffee,  supra.  3  Smith  v.  Denniff,  23  Mont.  65. 

*  Farnham  on  Waters  and  Water  Rights,  Chaps.  XXI.,  XXII.,  and 
cases  cited. 

'  Porter  v.  Pettengill,  110  Pac.  393. 
«  Barnes  v.  Sabron,  10  Nev.  217. 

'  Union  Mill.  &  Min.  Co.  v.  Dangberg,  supra;  Becker  r.  Marble  Creek 
Irrig.  Co.,   15  Utah.  225. 

*  Barnes  v.  Sabron,  supra. 


Irrigation  121 

an  appropriation  has  been  made,  there  must  be  a  new 
appropriation  of  the  excess  required,  made  with  due  regard 
to  intervening  rights.^  And  when  the  area  of  the  irrigated 
land  remains  substantially  unenlarged  for  several  years,  a 
new  appropriation  is  requisite  for  an  increase  in  acreage.^ 

§  82.     The  character  of  irrigation  conduits  and  works. 

The  means  which  one  entitled  to  use  water  for  irrigation 
adopts  to  divert  and  convey  it  from  the  source  of  supply  to 
the  land  to  be  irrigated  are  wholly  immaterial.^  He  may 
employ  any  sort  of  a  conduit  whatever,  provided  it  is  not 
wasteful  and  is  kept  in  good  condition  and  repair.^  He 
may,  for  example,  if  he  elects  to  do  so,  take  advantage  of 
any  natural  cut,  gulley,  or  depression  in  the  earth  and 
make  it  a  part  of  his  irrigation  ditch.^  And  although  he 
cannot,  against  the  will  of  the  owner,  seize  and  use  a  ditch 
belonging  to  another  person  ^  unless  it  has  been  aban- 
doned,^ yet  he  may  do  so  by  that  person's  consent.  Two 
or  more  persons  may  divert  water  for  irrigation  through  the 
same  head-gate  without  by  so  doing  merging  their  respec- 
tive rights  and  without  either  of  them  thereby  surrendering 
his  priority.^  Any  one  who  has  lawfully  appropriated 
water  for  irrigation  may,  without  losing  his  priority,  change 
the  point  of  his  diversion,  provided  his  action  does  not  in- 

>  Healy  v.  Woodruff,  97  Cal.  464. 

*  Porter  v.  Pettengill,  supra. 

«  Thomas  v.  Guiraud,  6  Colo.  530. 

*  Barrows  v.  Fox,  98  Cal.  63. 

'  Hoffman  v.  Stone,  7  Cal.  46 ;   Simmons  v.  Winters,  21  Ore.  35. 

«  McPhail  V.  Forney,  4  Wyo.  556. 

7  Jatunn  v.   O'Brien,  89  Cal.  57. 

»  Nichols  V.  Mcintosh,  19  Colo.  22. 


122  Law  for  the  American  Farmer 

• 

fringe  the  rights  of  others  entitled  to  use  the  water.^  And 
with  the  same  proviso  he  may  also  change  old  ditches  for 
new  ones.2  Such  changes  work  no  alteration  in  the  quan- 
tity of  water  an  appropriator  is  entitled  to  use.^  An 
abandoned  ditch  maybe  taken  possession  of,  reconstructed, 
and  used  by  a  new  appropriator,  and  his  rights  will  be 
measured  with  respect  of  subsequent  appropriators  by  the 
capacity  of  the  re-made  ditch.*  If  the  new  ditch  is  of  less 
capacity  than  was  the  old  one,  it  may  not  be  enlarged  to  the 
original  extent  after  other  persons  have  acquired  rights  in 
the  water.^  When  irrigation  is  provided  for  and  regulated 
by  statute,  the  means  of  conveying  the  water  to  the  land 
to  be  irrigated  are  implied.^ 

§  83.     Rights  of  irrigators  under  appropriation. 

Water  rights  in  the  same  stream  acquired  by  appropria- 
tion have  priority  in  the  order  of  diversion.'''  The  water 
can  be  appropriated  only  for  a  beneficial  use,  but  it  is 
held  it  may  legally  be  used  for  a  beneficial  purpose  other 
than  the  one  intended  and  begun  when  the  appropriation 
was  made;  that  is,  water  appropriated  for  mining  may 
afterwards  lawfully  be  used  for  irrigation,  and  vice  versa.^ 

1  Ibid.  San  Luis  Water  Co.  v.  Estrada,  117  Cal.  168;  Nevada  Ditch 
Co.  V.  Bennett,  supra. 

2  Nichols  V.  Mcintosh,  supra. 

»  Smith  V.  Corbit,  116  Cal.  587.- 

*  Jatunn  v.  O'Brien,  supra. 
'  Ibid. 

«  Paxton  &  H.  Irrig.  Canal  Co.  v.  Farmers  &  M.  Irrig.  Co.,  45  Neb. 
884.  7  Porter  v.  Pettengill,  supra. 

*  Ramelli  v.  Irish,  96  Cal.  214;  Meagher  v.  Hardenbrook,  11  Mont. 
385 ;  Strickler  v.  Colorado  Sp'gs,  16  Colo.  61 ;  Springville  v.  Fullmer, 
7  Utah,  450. 


Irrigation,  123 

Tenants  in  common  of  appropriated  water  may  lawfully 
agree  among  themselves  that  each  shall  have  on  certain 
days  or  at  stated  times  sole  use  of  the  water  and  lose  none 
of  their  rights  relative  to  other  persons  by  such  an  agree- 
ment.^ The  mere  neglect  of  one  who  has  duly  appropri- 
ated water  for  irrigation  to  use  it  for  that  purpose  is  no 
abandonment  and  does  not  work  a  loss  of  the  right ;  ^  but 
although  the  right  to  use  the  water  for  irrigation  is  not  lost 
merely  by  not  exercising  it  for  a  longer  or  shorter  time,  the 
right  to  maintain  a  ditch  to  carry  the  water  to  the  land  to 
be  irrigated  may  be  lost  by  persistent  neglect  for  a  con- 
siderable time  to  use  it  as  an  aqueduct.  For  example,  a 
ditch  made  by  running  a  furrow  and  deepening  it  with  a 
spade,  if  left  unused  for  years  until  it  becomes  effaced  and 
unnoticeable,  is  deemed  to  have  been  abandoned.^  One 
who  appropriates  water  for  a  beneficial  use  is  clearly  en- 
titled to  the  protection  of  the  courts  against  acts  which 
materially  diminish  the  quantity  or  deteriorate  the  quality 
of  the  water  for  the  uses  to  which  he  is  entitled  to  apply 
it.^  Thus,  the  owner  of  a  ditch  conveying  water  for  a 
beneficial  use  is  entitled  to  damages  and  an  injunction 
against  the  owner  of  a  sawmill  on  the  stream  whence  he 
draws  his  supply  of  water  for  casting  sawdust,  refuse,  and 
tan-bark  into  the  stream  so  as  to  clog  and  diminish  the 
flow  of  water  in  the  ditch. ^  And  an  action  for  damages, 
and  an  injunction  by  the  owner  of  a  ditch  carrying  water 
for  agricultural  and  culinary  purposes,  lies  against  the 

1  Lytle  Creek  Water  Co.  v.  Perdew,  65  Cal.  447. 

2  Sloan  V.  Glancy,  19  Mont.  70. 
'  Dorr  V.  Hammond,  7  Colo.  79. 

*  Phoenix  Water  Co.  v.  Fletcher,  23  Cal.  482. 
6  Ibid. 


124  Law  for  the  American  Farmer 

owner  of  an  ore  crusher  on  the  stream  above  the  point  of 
diversion  who  uses  the  water  in  operating  the  crusher  and 
returns  it  to  the  stream  holding  in  solution  mineral  and 
chemical  poisons  destructive  of  animal  and  vegetable  life.^ 
A  right  of  way  for  an  irrigation  ditch  across  another's  land 
may,  of  course,  be  acquired  by  grant,  and,  if  it  is,  the  terms 
of  the  contract  will  govern  the  rights  and  obligations  of 
the  parties.  Sometimes  such  a  grant  is  implied  when  it 
has  not  been  expressly  made,  as,  for  example,  when  the 
owner  of  land  divides  and  conveys  it  to  separate  grantees, 
and  the  ditch  is  on  one  parcel  and  irrigates  the  other.  In 
that  case  the  new  owner  of  the  latter  tract  takes  an  ease- 
ment of  the  ditch  across  the  former  parcel,  and  the  grantee 
of  that  parcel  takes  it,  subject  to  such  easement.^  A  right 
of  way  for  an  irrigation  ditch  over  the  land  of  another  may 
also  be  acquired  by  prescription  beginning  in  an  oral  grant 
and  followed  for  the  statutory  period  by  continuous  use 
tolerated  by  the  owner  of  the  servient  estate.^  But  the 
right  will  not  grow  out  of  a  mere  license.'*  A  landowner 
over  whose  land,  without  his  consent,  an  irrigation  canal 
to  supply  the  needs  of  a  farming  community  beyond  has 
been  unlawfully  constructed  has  no  right  summarily  to 
destroy  the  work,  but  must  resort  to  the  courts  for  redress.^ 

§  84.     Title  to  and  location  of  irrigable  land. 

According  to  the  doctrine  of  riparian  rights  and  where  the 
common  law  prevails  unmodified,  the  use  of  the  waters  of 

»  Crane  v.  Winsor,  2  Utah,  248.  «  Quinlan  v.  Noble,  75  Cal.  250, 

'  Coventor!  v.  Seufert,  23  Ore.  548. 

<Yeager  v.  Woodruff,  17  Utah,  361. 

*  Crescent  Canal  Co.  v.  Montgomery,  143  Cal.  248. 


Irrigation  125 

a  running  stream  is  incidental  to  the  ownership  of  at  least 
one  of  its  banks,  and  when  the  use  is  for  the  purpose  of 
irrigating  the  soil,  it  is  confined  to  the  land  which  is  strictly 
riparian.  The  use  of  such  waters  by  a  riparian  proprietor 
to  irrigate  his  riparian  land  is  an  established  common  law 
right  ^  and  in  respect  of  private  streams  one  that  is  recog- 
nized even  in  those  states  where  the  country  requires  ir- 
rigation to  make  the  soil  productive.^  In  the  states  where 
the  doctrine  of  appropriation  is  accepted,  it  is  not  essential 
that  the  irrigator  shall  own  the  land  he  irrigates,  nor  yet 
that  the  irrigated  land  shall  be  riparian.  One  who  right- 
fully occupies  public  land  may  appropriate  the  water  on  it 
although  he  has  no  title  and  although,  too,  the  land  has  not 
even  been  surveyed.^  A  mere  possessory  right  to  the  land 
is  all  that  is  necessary.  Thus  a  settler  on  public  lands  with 
a  bona  fide  purpose  to  acquire  title  to  the  tract  he  cultivates 
may  at  the  very  start  lawfully  appropriate  water  to  irri- 
gate it,  although  he  cannot  perfect  title  for  a  considerable 
length  of  time.'*  Nor  does  the  location  of  the  land  to  be 
irrigated  affect  its  possessor's  right  to  divert  the  water 
he  has  appropriated.  The  land  need  not  be  riparian.^ 
The  water  may  even  be  conducted  across  a  dividing  ridge 
to  another  water-shed.^  It  is  the  appropriation  and  use, 
not  the  place  of  use,  which  tests  the  right  to  water  for 
irrigation.^  It  has  been  held  in  Oregon  that  an  appropri- 
ator  of  water  has  no  right  as  against  others  to  use  it  on 

'  Clark  V.  Allaman,  supra. 

2  Benton  v.  Johncox,  17  Wash.  277 ;  Crawford  Co.  v.  Hathaway,  supra. 

3  Ely  V.  Ferguson,  91  Cal.  187.        *  Elliot  v.  Whitmore,  8  Utah,  253. 
'  Hammond  v.  Rose,  11  Colo.  524. 

•  Oppenlander  v.  Left  Hand  Ditch  Co.,  supra. 
»  Davis  V.  Gale,  32  Cal.  26. 


126  Law  for  the  American  Farmer 

lands  for  which  the  appropriation  was  not  made/  but  it 
has  been  decided  in  California  that  an  owner  of  a  right  to 
use  for  irrigation  water  from  a  common  dam  and  ditch  in 
quantities  sufficient  to  irrigate  a  definite  number  of  acres 
of  land  may,  if  he  chooses,  use  the  water  to  irrigate  another 
tract  of  equal  area,  for,  it  was  said,  a  mere  change  of  the 
place  of  use  without  enlarging  it  works  no  injury  to  others.- 
What  has  been  said  in  this  section  applies  when  there  is 
no  statute  prescribing  qualifications  of  appropriators  of 
water  for  irrigation  and  the  eligibility  of  land  to  be  irri- 
gable. When  such  a  statute  exists  in  any  community,  its 
provisions  will,  of  course,  control. 

§  85.     Water  rights  for  irrigation  as  property. 

The  legal  right  to  use  water  is  termed  a  "water  right"  ^ 
and  is  a  right  of  property.  The  right  to  use  water  in  the 
arid  regions  has  been  pronounced  one  of  the  most  valuable 
property  rights  known  to  the  law.*  The  right  of  a  riparian 
proprietor  to  use  the  water  of  the  adjacent  stream  to  ir- 
rigate his  land  is  a  property  right  which  cannot  be  taken 
from  him  for  public  use  without  making  him  just  compensa- 
tion.^ All  the  courts  agree  in  regarding  the  right  to  use 
water  for  irrigation  as  property,  but  they  differ  as  to 
whether  it  is  inseparable  from  and  incidental  to  the  land 
or  exists  independently.  The  riparian  right  to  irrigate  is 
a  corporeal  one  or  hereditament  running  with  the  riparian 

'  Ison  V.  Sturgill,  supra. 
«  Walnut  Irrig.  Dist.  v.  Burke,  110  Pac.  518. 
'  Smith  V.  Denniff,  supra. 

*  Hayt.  C.  .1.,  in  White  v.  Farmers'  High  Line  Canal  &  Res.  Co.,  22 
Colo.   191. 

'  Lux  r.  Haggin,  supra. 


Irrigation  127 

land  which  follows  and  is  included  in  the  ownership  of  the 
riparian  soil.^  It  has  also  been  held  that  the  right  to  use 
appropriated  water  for  irrigation  is  appurtenant  to  the 
land  which  it  has  been  diverted  to  irrigate.^  It  has  further 
been  said  that  the  water  appropriated  for  irrigation  is  as 
much  a  part  of  the  improvements  of  a  farm  as  the  build- 
ings and  fences,  and,  therefore,  that  a  transfer  of  the  pos- 
sessory right  to  the  farm  carries  with  it  the  appropriated 
water.3  On  the  other  hand,  it  has  been  decided  that  a 
consumer's  right  to  water  from  an  irrigation  canal  or  ditch 
is  a  property  right  which  he  may  convey  to  another  person 
or  transfer  to  other  lands  reached  by  the  conduit,  provided 
he  does  not  thereby  invade  the  rights  of  others.'*  And 
another  court  has  said  that  although  the  sale  of  water 
rights  separate  from  the  land  has  given  rise  to  much  liti- 
gation that  circumstance  affords  no  ground  for  destroying 
the  property  therein  by  refusing  to  sanction  their  transfer.^ 
The  nature  of  the  property  right,  therefore,  is  different  in 
different  states.  The  prudent  purchaser  of  an  irrigated 
farm,  then,  will  make  sure  that  he  acquires  by  express 
conveyance  the  water  right  as  well  as  the  land.  He  who 
constructs  an  irrigation  ditch  on  the  public  lands,  and  uses 
it  persistently  for  its  designed  purpose,  is  held  to  have  a 
qualified  ownership  in  it  dependent  upon  continued  use, 
and  lost  by  cessation  of  use.*'  If  the  laws  authorize 
springs  to  be  appropriated  (sometimes  they  do  not),  he 

'  Smith  V.  Denniff,  supra. 

2  Porter  v.  Pettengill,  supra. 

'  Low  V.  Schaffer,  supra. 

*  Hard  v.  Boise  City  Irrig.  &  L.  Co.,  9  Idaho,  589. 

s  Johnston  v.  Little  Horse  Creek  Irrig.  Co.,  13  Wyo.  208. 

«  Lehi  Irrig.  Co.  v.  Moyle,  4  Utah,  327. 


128  Law  for  the  American  Farmer 

who  upon  the  pubUc  lands  first  appropriates  the  water  of 
a  spring  which  nowhere  overflows  its  brim  by  cutting  a 
ditch  from  it  to  the  land  he  intends  to  irrigate  has  a  right 
to  continue  the  use  of  the  water  superior  to  that  of  one  who 
afterwards  obtains  title  to  the  land  on  which  the  spring 
is  situated.^  The  water  of  a  spring  thus  appropriated  is 
appurtenant  to  the  ditch  which  conveys  it  and  passes  by  a 
conveyance  of  such  ditch.^  Irrigating  ditches  and  water 
rights  of  irrigation  in  some  states  have  been  expressly 
exempted  from  taxation  apart  from  the  land.  In  Colo- 
rado^ and  Utah/  the  constitutions  provide  that  ditches, 
canals,  and  flumes  owned  and  used  for  irrigating  land  by 
either  individuals  or  corporations  shall  not  be  taxed  sepa- 
rately as  long  as  they  are  owned  and  used  exclusively  for 
irrigating  purposes.  Nebraska,  by  statute,  has  exempted 
such  property  from  all  taxation,  state,  county,  and  munic- 
ipal.^ If  no  special  exemptions  are  given  by  law,  con- 
stitutional or  statutory,  such  works  and  rights,  like  other 
property,  will  be  subject  to  taxation.^ 

§  86.     Irrigation  as  a  public  use  of  water. 

By  the  civil  in  contradistinction  to  the  common  law,  all 
natural  streams  flowing  in  or  through  the  state  are  public 
waters.  The  state  owns  the  waters  in  its  sovereign  capac- 
ity and  holds  them  in  trust  for  any  citizen  to  appropriate 
for  a  beneficial  purpose.''     This  doctrine  has  been  embodied 

'  Brosnaa  v.  Harris,  39  Ore.   148. 

«  Williams  v.  Harter,  121  Cal.  47. 

'  Colo.  Const.  Art.  X.,  §  3.  "  Utah  Const.  Art.  XIII.,  §  3. 

«  Neb.  Consol.  Stat,  of  1891,  §  2035. 

•  Empire  Land  &  Canal  Co.  v.  Rio  Grande  Co.  Com'rs,  21   Colo.  244. 

'  Crawford  Co.  v.  Hathaway,  supra. 


Irrigation  129 

in  the  constitutions  of  several  states  in  the  arid  region.' 
In  other  state  constitutions  the  appropriation  of  water  for 
distribution,  sale,  or  rental  to  consumers  ^  or  the  use  of  it 
for  irrigation  has  been  declared  to  be  a  public  use.^  The 
importance  of  such  provisions  will  be  appreciated  when  it 
is  remembered  that  there  is  no  constitutional  power  in  the 
United  States  to  take  private  property  by  right  of  eminent 
domain  for  any  purpose  except  a  public  use,  even  upon 
making  just  compensation  for  it  to  the  owner.  The  right 
of  the  state  to  exert  the  power  of  eminent  domain  to  ap- 
propriate the  water  of  any  stream  for  any  use  which  will 
subserve  the  public  interest  and  welfare  is  indisputable,  and 
the  reclamation  of  arid  lands  is  conceded  to  be  a  work  of 
public  utility  for  which  private  property  may  be  con- 
demned under  constitutional  limitations.'*  The  right  to 
appropriate  for  the  public  use  water  from  private  lands 
may  certainly  be  enforced  by  condemnation  proceedings.* 
The  legislature  has  the  sole  power  to  determine  when  and 
in  what  case  the  right  of  eminent  domain  shall  be  exercised 
to  condemn  private  property,  subject  to  the  limitations  that 
it  shall  be  taken  only  for  a  public  use  and,  if  taken,  that 
just  compensation  shall  be  made  for  it.  If  the  legislature 
in  authorizing  the  condemnation  of  water  and  water  rights 
for  irrigation  should  declare  irrigation  to  be  a  public  use, 
the  courts  would  not  be  warranted  in  pronouncing  the 
declaration  false  and  the  legislative  act  unconstitutional.^ 

1  Colo.  Const.,  Art.  XV.,  §  5 ;  No.  Dak.  Const.,  Art.  XVII.,  §  210; 
Wyo.  Const.,  Art  II.,  §  31 ;    Art.  VIII.,  §  1. 

'  Cal.  Const.,  Art.  XIV.,  §  1 ;  Idaho  Const.,  Art.  XV.,  §  1. 

3  Mont.  Const.,  Art.  III.,  §  15. 

*  Clark  V.  Cambridge  &  A.  Irrig.  &  Imp.  Co.,  45  Neb.  798. 

^  St.  Helena  Water  Co.  v.  Forbes,  62  Cal.  182. 

«  Umatilla  Irrig.  Co.  v.  Barnhart,  22  Ore.  389. 

K 


130  Law  for  the  American  Farmer 

The  use  of  water  by  a  private  person  exclusively  to  irrigate 
his  own  lands  is  clearly  a  private  use/  and  it  is  none  the 
less  so  because  he  diverted  the  water  with  the  intention  of 
supplying  some  of  it  to  others  for  beneficial  uses.^  In  some 
of  the  arid  states  the  laws,  constitutional  and  statutory, 
empower  individuals  to  acquire  rights  of  way  for  irriga- 
tion ditches  across  public  lands,  and,  upon  making  just 
compensation  to  the  owners,  across  private  lands  also.^  In 
Colorado  the  constitution  guarantees  private  persons  tne 
right  to  condemn  ways  for  irrigation  ditches,  and  the 
method  of  exercising  that  right  is  regulated  by  statute.^ 
In  the  same  state,  by  statute,^  a  person  may  in  certain 
cases  acquire  by  condemnation  the  right  to  use  another's 
ditch.^  Everywhere  throughout  the  arid  region  the  use 
for  irrigation  of  water  distributed  to  consumers  by  irriga- 
tion companies  is  a  public  use.^ 

§  87.     State  control,  regulation,  and  administration  of  ir- 
rigation. 

When  many  consumers  take  water  from  the  same  ditch, 
some  by  taking  excessive  quantities  may  altogether  de- 
prive others  of  water  they  absolutely  need  to  avert  a  total 

'  Lorenz  v.  Jacob,  63  Cal.  73. 

*  Ihid. 

'  Vide,  Colo.  Const..  Art.  II.,  §  14;  Art.  XVI.,  §  7;  Mills  Anno  Stat. 
Colo.,  §§  2257-2260 ;  R.  S.  Ariz.  1887,  §§  3201-3202 ;  and  Cal.  Act, 
M'ch  12,  1885,  §  11. 

*  Downing  v.   More,   12  Colo.  316. 
'  Mills  Anno.   Stat.   Colo..    §  2263. 

*  Water  Supply  &  Stor.  Co.  v.  Larimer  &  W.  Irrig.  Co.,  24  Colo.  322. 
'  Fallbrook  IrriR-  Dist.  v.  Bradley,  164  U.  S.  112;   San  Diego  Flume 

Co.  V.  Souther,  90  Fed.  164  ;   Lindsay  Irrig.  Co.  v.  Mehrtens,  97  Cal.  676; 
Umatilla  Irrig.  Co.  v.  Barnhart,  supra. 


Irrigation  131 

failure  of  growing  crops,  and  this  is  equally  true  when 
several  consumers  take  the  waters  of  a  common  stream 
by  separate  ditches.  Controversies  in  such  cases  are 
inevitable,  and  often  they  have  given  rise  to  violence.  To 
avoid  unseemly  breaches  of  the  peace,  as  one  jurist  has 
put  it,^  it  was  found  expedient  and  necessary  for  the  state 
to  provide  complete  rules  of  procedure  governing  the 
taking  of  water  from  the  public  streams  and  regulating  its 
distribution  to  those  entitled  to  it.  The  authority  of  a 
state  legislature,  as  another  jurist  ^  has  said,  to  enact  laws 
regulating  the  distribution  of  water  to  actual  appropriators 
is  indubitable,  provided  there  is  no  invasion  of  constitu- 
tional or  vested  rights.  The  courts  construe  statutes  of 
this  sort  liberally  to  carry  out  their  useful  purposes.^  The 
legislature,  when  unrestrained  by  constitutional  provisions, 
has  the  same  power  to  provide  for  reclaiming  arid  lands  by 
irrigation  and  to  designate  the  agencies  for  the  work  as  it 
has  to  provide  for  the  draining  of  great  swamps.*  The 
public  ownership  of  streams  and  control  of  the  appropria- 
tion, diversion,  and  distribution  of  their  waters  for  mining 
and  irrigating  purposes,  provided  for  in  state  constitutions, 
do  not  necessarily  require  the  state  to  construct  or  operate 
diversion  and  irrigation  works  on  its  own  account  nor  to 
become  itself  a  carrier  of  water  to  consumers ;  ^  but  just 
as  the  government  sometimes  undertakes  to  drain  great 
marshes,  it  may  itself  undertake  to  construct  and  maintain 

1  Hayt,  C.  J.,  in  White  v.  Farmers'  High  Line  Canal  &  Res.  Co.,  supra. 

2  Elliott,  J.,  in  Farmers'  High  Line  Canal  &  Res.  Co.  v.  Southworth, 
13  Colo.  111. 

3  Cent.  Irrig.  Dist.  v.  De  Lappe,  79  Cal.  351. 
<  In  Re  Madera  Irrig.  Bonds,  92  Cal.  296. 

^  Farm  Inves.  Co.  v.  Carpenter,  supra. 


132  Law  for  the  American  Farmer 

irrigation  works  and  distribute  water  for  irrigation  under 
the  direction  of  public  officers.^  For  that  purpose  the 
legislature  may  exert  the  power  of  eminent  domain  to  take 
private  property,  since  the  use  of  water  to  irrigate  arid 
lands  is  a  public  use.^  In  the  arid  region  several  of  the 
states  have  undertaken  as  a  governmental  function  to 
establish  and  administer  systems  of  irrigation.  To  that 
end  their  legislatures  have  enacted  statutes  creating  and 
providing  for  the  administration  of  irrigation  districts 
clothed  with  power  to  construct,  maintain,  and  operate 
irrigation  and  diversion  works  and  to  supply  consumers 
with  water  to  irrigate  their  lands.  Attacks  upon  the 
constitutionality  of  such  statutes  have  been  numerous  but 
generally  unsuccessful.^  An  irrigation  district  is  a  public 
corporation  somewhat  analogous  to  a  municipality.'*  It 
is  like  unto  a  municipal  corporation  in  some  respects,  al- 
though not  within  the  purview  of  constitutional  provisions 
restricting  municipal  powers.^  The  means  of  constructing 
such  works  and  acquiring  water  rights  in  irrigation  dis- 
tricts usually  are  obtained  by  issuing  bonds  after  they 
have  been  authorized  by  a  vote  of  the  electors  in  the  dis- 
trict, and  the  bonds  are  met  by  assessments  levied  upon 
the  lands  in  such  district.     In  such  cases  the  authorizing 

'  Vide  Farnham  on  Waters  and  Water  Rights,  Chap.  XXI.,  §§  616  et 
seq. 

'  Fallbrook  Irrig.  Dist.  v.  Bradley,  and  Crawford  Co.  v.  Hathaway, 
supra;    Lake  Koen  Navig.  Res.  &  Irrig.  Co.  v.  Klein,  63  Kan.  484. 

3  Fallbrook  Irrig.  Dist.  v.  Bradley,  and  In  Re  Madera  Irrig.  Bonds, 
supra;  Alfalfa  Irrig.  Dist.  v.  Collins,  46  Neb.  411;  In  Re  Cent.  Irrig. 
Dist.,   117  Cal.  382. 

*  Herring  v.  Modesto  Irrig.  Dist.,  95  Fed.  705. 

'  Middle  Kittitas  Irrig.  Dist.  v.  Peterson,  4  Wash.  147 ;  Alfalfa  Irrig. 
Dist.  V.  Collins,  supra. 


Irrigation  133 

vote  of  the  electors  is  essential  to  the  validity  of  the  assess- 
ments.^ Assessments  of  this  kind  are  valid  if  all  the 
property  in  the  irrigation  district  is  taxed  uniformly  and 
equally  in  laying  them.^  These  assessments,  like  others, 
are,  of  course,  liens  upon  the  assessed  property  when  law- 
fully imposed,  and  if  they  are  not  paid  within  the  time  pre- 
scribed by  law,  the  property  may  be  sold  to  satisfy  them, 
but  usually  the  delinquent  landowner  is  allowed  an  oppor- 
tunity and  a  reasonable  time  in  which  to  redeem  his  land 
from  the  sale. 

§  88.     Characteristics  of  irrigation  companies. 

The  several  owners  of  water  rights  in  the  same  stream, 
from  motives  of  economy  and  convenience,  may  unite  in  a 
voluntary  association  or  form  a  corporation  in  which  they 
are  the  sole  stockholders  to  distribute  the  water  to  them- 
selves and  meet  the  cost  and  expenses  by  pro  rata  assess- 
ments. Such  an  association  or  corporation  is  a  mere  pool 
of  individual  water  rights  and  is  a  purely  private  body, 
not  made  for  profit,  but  simply  to  serve  the  interests  of  its 
own  members.^  Again  an  irrigation  company  may  be,  and 
usually  is,  an  organization  of  capitaHsts  for  profit  to 
sell  water  to  consumers  to  irrigate  their  lands.  The 
consumers  may  or  may  not  be  its  stockholders.  Such  a 
body  is  a  quasi  pubhc  corporation  subject  to  legislative 
and  judicial  oversight  and  control  for  the  general  welfare."' 

»  Tregea  v.  Owens,  94  Cal.  317;    Woodruff  v.  Perry,  103  Cal.  611. 

2  Pioneer  Irrig.  Dist.  v.  Bradley,  8  Idaho,  310. 

3  Vide  Farnham  on  Waters  and  Water  Rights,  Chap.  XXI.,   §  61© 
et  seq. 

*  Wheeler  v.  Nor.  Colo.  Irrig.  Co.,  10  Colo.  582. 


134  Law  for  the  American  Farmer 

The  great  cost  of  constructing  dams  and  canals  and  of 
maintaining  them  when  constructed,  and  the  resulting 
advantages  in  the  conservation  and  saving  of  water  from 
large  and  permanent  works  of  this  sort,  preclude,  it  is  said, 
the  policy  of  restricting  the  ownership  of  irrigation  dams 
and  ditches  to  the  actual  appropriators  of  the  water.^ 
The  difficulties  arising  out  of  the  ownership  and  control 
of  the  means  of  impounding  and  distributing  water  for 
irrigation  by  individual  tenants  in  common  make  it  almost 
necessary,  according  to  the  same  authority,  to  create 
corporations  for  the  purpose,  and,  accordingly,  such  cor- 
porations have  been  organized,  and  their  rights  of  o^Tier- 
ship  and  control  of  irrigation  works  and  waters  recognized, 
in  all  the  arid  states  and  territories.^ 

§  89.     Rights  and  duties  of  irrigation  companies. 

A  charter  from  the  legislature  to  an  irrigation  company 
empowering  it  to  acquire  water  rights  does  not  confer  such 
rights  upon  it,  but  only  authority  to  get  them  in  a  manner 
allowed  by  law.^  The  legislature  has  no  constitutional 
power  to  grant  such  a  company  exclusive  rights  to  the 
waters  of  a  stream  so  as  to  impair  or  take  away  vested 
private  rights.^  A  legislative  grant  to  an  irrigation  com- 
pany of  the  free  use  of  the  waters  of  a  stream  or  streams 
only  grants  the  waters  on  the  public  lands,  and  should  the 
waters  belonging  to  riparian  owners  be  needed  by  the 
corporation,  it  can  acquire  them  against  the  owners'  will 

'  Slosser  v.  Salt  Riv.  Val.  Canal  Co.,  7  Ariz.  .370. 

*  Ibid. 

*  Mud  Creek  Irrig.  Co.  v.  Vivian,  74  Tex.  170. 

*  Munroe  v.  Ivie,  2  Utah,  535. 


Irrigation  135 

only  by  condemnation  proceedings  and  the  payment 
of  just  compensation.^  This  it  may  do  because  for  an 
irrigation  company  to  condemn  private  property  is  to  take 
it  for  a  public  use.^  Like  railroad  corporations,  irrigation 
companies  furnisliing  water  to  consumers  for  a  consider- 
ation paid,  though  private  corporations,^  are  charged  with 
public  duty  and  service.^  An  irrigation  company  is  en- 
titled to  a  reasonable  compensation  for  the  water  it  fur- 
nishes,^ and  this  means  that  it  may  charge  such  a  rate  as 
will  enable  it  to  earn  a  fair  profit  upon  the  capital  invested ;  ® 
but  it  will  not  be  allowed  to  charge  such  unreasonable  rates 
as  to  oppress  consumers^  An  irrigation  company  will  not 
be  allowed  to  divert  water  without  limit  as  a  speculation 
and  to  create  a  monoply  so  as  to  enable  it  to  charge  ex- 
orbitant rates  for  consumption.^  An  irrigation  company 
distributing  water  to  the  public  for  general  irrigation  can- 
not arbitrarily  refuse  to  supply  a  consumer  who  makes 
seasonable  apphcation  for  water  and  tenders  proper  com- 
pensation.^ A  consumer  to  whom  a  statute  gives  the  right 
to  purchase  water  from  an  irrigation  company  upon  com- 
pliance with  provisions  of  the  law  cannot  be  compelled, 

1  Mud  Creek  Irrig.  Co.  v.  Vivian,  supra. 

2  Prescott  Irrig.  Co.  v.  Fiathers,  20  Wash.  454 ;  Paxton  &  H.  Irrig. 
Canal  Co.  v.  Farmers  &  M.  Irrig.  Co.,  supra. 

'  San  Diego  Flume  Co.  v.  Souther,  supra. 

*  Atlantic  Trust  Co.  v.  Woodbridge  Canal  &  Irrig.  Co.,  79  Fed.  39 ; 
San  Joaquin  &  K.  R.  Canal  &  Irrig.  Co.  v.  Stanislaus  Co.,  90  Fed.  516 ; 
Merrill  v.  So.  Side  Irrig.  Co.,  112  Cal.  426. 

*  Wilterding  v.  Green,  4  Idaho,  773. 

'  San  Joaquin  &  K.  R.  Canal  &  Irrig.  Co.  v.  Stanislaus  Co.,  supra. 
'  San  Diego  Land  Co.  v.  National  City,  74  Fed.  79. 

*  Combs  V.  Agric.  Ditch  Co.,  supra,  New  Mercer  Ditch  Co.  v.  Arm- 
strong, 21  Colo.  357. 

*  Combs  V.  Agric.  Ditch  Co.,  supra. 


136  Law  for  the  American  Farmer 

as  a  condition  precedent  to  receiving  the  service  he  re* 
quires,  to  assent  to  the  rules  and  regulations  of  the  com- 
pany unless  they  are  both  reasonable  and  conformable  to 
the  law.^  An  irrigation  company  may  be  compelled  by 
mandamus  to  furnish  water  to  a  consumer  who  shows  him- 
self entitled  by  law  to  have  it.^  The  consumers  of  water 
for  irrigation  who  for  one  or  more  seasons  have  been  sup- 
plied by  a  water  company  ^vith  water  for  which  they  have 
paid  and  who  also  have  observed  all  their  other  legal 
obligations  are  entitled  to  a  preference  over  new  appli- 
cants the  next  season  of  the  same  quantities  of  water 
previously  used.^  An  irrigation  company  which  has 
failed  to  supply  a  consumer  with  the  water  it  contracted 
to  furnish  him  when  he  was  entitled  to  have  it  is  liable 
for  the  loss  of,  or  damage  to,  the  consumer's  crop  which 
has  resulted  from  the  breach  of  contract.^  The  com- 
pany can  escape  such  liability  only  by  showing  that 
its  failure  to  furnish  the  water  was  due  to  some  unfore- 
seen and  unavoidable  cause. ^  A  failure  from  natural 
causes  of  the  source  of  supply,  such,  for  example,  as  a 
scanty  and  inadequate  rain-fall,  is  a  good  excuse  for  not 
performing  the  contract ;  ^  but  that  the  company  was 
restrained  by  an  injunction  from  diverting  the  water 
to  its  ditch  affords  it  no  legal  excuse.'' 

»  Ibid.     Golden  Canal  Co.  v.  Bright,  8  Colo.  144. 
2  Merrill  V.  So.  Side  Irrig.  Co.,  supra,  Peo.  v.  Farmers'  High  Line  Canal 
&  Re3.  Co.,  25  Colo.  202. 

»  Nor.  Colo.  Irrig.  Co.  v.  Richards,  22  Colo.  450. 

*  Ibid.     Sample  v.  Fresno  Flume  &  Irrig.  Co.,  129  Cal.  222. 
'  Pawnee  Land  &  Canal  Co.  v.  Jenkins,  1  Colo.  App.  424. 

•  Landers  v.  Garland  Canal  Co.,  52  La.  Ann.  1465. 
'  Sample  v.  Fresno  Flume  &  Irrig.  Co.,  supra. 


Irrigation  137 

§  90.     Measurement  of  water  used  for  irrigation. 

There  is  at  common  law  no  need  of  measuring  the  water 
taken  from  a  stream  by  a  riparian  proprietor  to  irrigate 
his  land.  All  such  proprietors  are  entitled  to  have  the 
stream  flow  substantially  in  undiminished  volume.  All 
have  equal  rights  to  use  the  water.  None  may  use  more 
than  his  reasonable  share  so  as  to  lessen  the  quantity  to 
which  the  others  are  entitled.  The  situation  is  vastly 
different  under  the  doctrine  of  appropriation.  The  first 
appropriator  takes  as  much  water  as  he  needs,  the  second, 
from  what  remains,  takes  as  much  as  he  needs,  and 
each  successive  appropriator  in  his  turn  takes  what  he 
needs  or  can  get  after  the  prior  appropriators  have  been 
satisfied.  It  is  obvious  that  under  such  a  system  some 
standard  of  measurement  is  necessary,  or  at  least  highly 
desirable.  In  most  of  the  arid  states  a  unit  of  measure- 
ment is  prescribed  by  statute.  The  statute  of  Washing- 
ton, to  cite  a  typical  instance,  makes  the  unit  measure  of 
water  for  irrigation,  mining,  milling,  and  mechanical  pur- 
poses a  cubic  foot  flowing  in  a  second  of  time.^ 

Such  statutes  do  not  prevent  the  employment  by  individ- 
uals in  private  contracts  of  another  unit  than  the  one  they 
prescribe.^  If  individuals  do  employ  another  than  the 
statutory  standard,  they  should  use  a  definite  one.  The 
term  "miner's  inch"  is  indefinite,^  and  the  term  "miner's 
measurement"  has  no  certain  and  fixed  meaning.'*  Such 
terms  are  valueless  as  a  standard  of  measurement  of  water 

1  1  Ballinger's  Anno.  Codes  &  Stat.,  §  4090. 

*  Longmire  v.  Smith,  supra. 
''Ibid. 

*  Dougherty  v.  Haggin,  56  Cal.  622. 


138  Law  for  the  American  Farmer 

delivered  for  irrigation  without  a  specification  of  the  head 
or  pressure.^  The  courts  have  not  agreed  as  to  the  mean- 
ing of  the  phrase  "an  inch  of  water."  The  hydraulic 
inch  when  used  with  reference  to  the  flow  of  water, 
according  to  one  court,  is  a  circle  an  inch  in  diameter,^ 
while  another  court  has  said  that  a  grant  of  simply  a  certain 
number  of  inches  of  water  will  be  construed  to  convey 
square  inches  because  lineal  inches  would  be  meaningless.' 
According  to  the  same  authority,  the  term  "square  inch 
of  water,"  when  used  in  a  grant  of  a  right  to  use  water, 
means  a  volume  or  stream  of  water  an  inch  square  in  cross 
section  area  measured  at  right  angles  to  the  line  of  its  flow 
and  flowing  with  the  velocity  due  to  the  head  stated  in 
the  conveyance.^  The  term  "inch  of  water,"  in  the  ordi- 
nary and  usual  sense  of  the  words,  does  not  convey  to  the 
mind  any  idea  of  volume,  but  if  at  any  particular  place 
where  and  time  when  it  has  been  used  in  a  conveyance  or 
contract  it  had  acquired  a  settled,  fixed,  and  well-understood 
meaning  not  substantially  disputed,  the  courts  will  accord  it 
that  meaning  in  interpreting  the  instrument.^  The  multi- 
pHcation  of  the  width  by  the  depth  of  an  irrigation  ditch 
affords  no  measure  of  the  inches  of  water  it  conveys.^ 

'  Longmire  v.  Smith,  supra. 

"  Schuylkill  Navig.  Co.  v.  Moore,  2  Whart.  477. 

3  Jackson  Mill,  Co.  v.  Chandos,  82  Wis.  437. 

♦  Janesville  Cotton  Mills  v.  Ford,  82  Wis.  416. 
'  Jackson  Mill.  Co.  v.  Chandos,  supra. 

•  Dougherty  v.  Haggin,  supra. 


CHAPTER  XII 

THE  POLICE   POWER   OF  THE   STATE 

§§  91-96 

§  91.     The  nature  of  the  police  power. 

In  its  broadest  sense  the  police  power  virtually  includes 
all  legislation  and  almost  every  function  of  civil  govern- 
ment. ^  It  is  the  power  of  a  state  to  enact  all  laws  necessary 
for  the  government  of  the  people  and  the  pubhc  welfare.^ 
It  is  a  power  belonging  to  the  sovereignty  of  the  state  and 
one  that  cannot  be  bartered  away  by  contract  or  other- 
wise,^ or  in  any  way  hmited  by  the  action  of  the  legislature.* 
The  pohce  powers  of  government  relate  to  the  safety, 
health,  comfort,  morals,  peace,  good  order,  and  welfare 
of  the  people.^  All  laws  and  regulations  needful  or  adapted 
to  promote  any  of  these  things  are  within  the  legitimate 
scope  of  the  pohce  powers  of  the  legislature.^  The  police 
powers  are  also  properly  exercised  in  regulating  the  civil 
rights  and  business  of  individuals^  and  to  smooth  the 

1  Barbier  v.  Connolly,   113  U.  S.  27. 

2Peo.  V.  Budd,   117  N.  Y.   1. 

3  C.  B.  &  Q.  R.  R.  V.  State,  47  Neb.  549. 

*  State  V.  Broadbelt,  89  Md.  565. 

s  Lochner  v.  N.  Y.,  198  U.  S.  45;    Ritchie  v.  Pec,  155  111.  98;    State 
p.  Heinemann,  80  Wis.  253. 

«  Ford  V.  State,  85  Md.  465 ;    Boyce's  case,  27  Nev.  299 ;    State  v. 
Powell,    58   Ohio   St.    324. 

■>  Com.  V.  Reinecke  Coal  Min.  Co.,  79  S.  W.  287. 

139 


140  Law  for  the  American  Farmer 

conditions  of  the  life  of  the  people.^  These  powers  extend 
to  the  regulation  of  the  use  of  private  property  and  the 
restraint  of  personal  conduct  in  the  interest  of  the  com- 
munity at  large.^  The  police  power  is  not  restricted  to 
suppressing  what  is  offensive,  unsanitary,  or  noxious,  but 
it  may  constitutionally  be  employed  to  promote  the  com- 
mon enjoyment,  public  convenience,  and  general  prosperity.' 

§  92.     The  limits  of  the  -police  power. 

The  police  power  is  not  wholly  unrestrained.  Broad 
as  it  is,  it  must  be  wielded  in  subordination  to  the  con- 
stitution,^ but  its  only  hmit  is  the  constitution.^  It  may 
not  be  used  to  invade  constitutional  rights.^  An  arbitrary 
or  unjust  restriction  of  property  rights  or  personal  liberty 
may  not  be  made  either  by  the  legislative  or  executive  de- 
partment of  the  government  under  the  guise  of  a  police 
regulation.^  To  be  constitutional,  police  legislation  must 
in  some  way  tend  to  protect  the  public  from  a  manifest 
evil.^  In  order  that  a  statute  regulative,  for  example,  of 
a  lawful  private  business  may  be  sustained  as  a  constitu- 
tional exercise  of  the  police  power  of  the  state,  the  courts 
must  be  able  to  see  that  it  tends  in  some  degree  to  prevent 
offenses  or  to  preserve  the  public  health,  morals,  safety,  or 

«  Williams  v.  State.  85  Ark.  464. 
«  Peo.  V.  Ewer,  141  N.  Y.  129. 

'  Bacon  v.  Walker,  204  U.  S.  311 ;   Brown  v.  Walling,  204  id.  320. 
«  State  V.  Goodwill.  33   W.   Va.   179. 
»  State  V.  Moore,  104  N.  C.  714. 

«  Ruhstrat  v.  Peo.,  185  111.  133 ;   State  v.  Julow,  129  Mo.  163 ;  Smiley 
r.  MarDonald,  42  Neb.  5. 

'  Block  V.  Schwartz,  27  Utah,  387. 
»  Smith  V.  Farr,  104  Pac.  401. 


The  Police  Power  of  the  State  141 

welfare,  and  that  it  was  both  intended  to  serve  some  such 
purpose  and  is  somehow  connected  wdth  its  avowed  end ;  ^  but 
subject  to  this  the  legislature  is  the  sole  judge  of  the  necessity 
and  expediency  of  the  statute.^  The  legislature  has  no 
power,  under  cover  of  poUce  legislation,  to  enact  laws  im- 
posing onerous  and  needless  burdens  upon  persons  and 
property  which  do  not  really  affect  public  health,  morality, 
or  welfare.^  A  state  must  not  in  its  pohce  laws  discrimi- 
nate between  its  own  citizens  and  those  of  other  states  to 
the  disadvantage  of  the  latter.  For  example,  it  has  been 
decided  that  a  statute  requiring  all  sheep,  both  healthy  and 
diseased  animals,  brought  into  the  state  from  beyond  its 
borders  at  all  times  and  seasons  of  the  year,  to  be  dipped 
in  an  antiseptic  bath  before  they  \n\\  be  allowed  to  enter 
the  state  and  at  the  same  time  exempting  from  dipping  all 
sheep  belonging  within  the  state  between  December  first 
and  shearing  time  in  the  following  spring,  and  also  exempt- 
ing all  domestic  ewes  with  lambs  between  the  middle  of 
March  and  the  middle  of  May,  was  unconstitutional  and 
void  because  it  violated  that  provision  of  the  Federal  con- 
stitution which  requires  citizens  of  the  several  states  to  be 
accorded  equal  privileges  and  immunities  in  all  the  states.'* 

§  93.     Quarantine  and  inspection  laws. 

Among  the  more  familiar  examples  of  the  exercise  of  the 
police  power  are  statutes  enacted  to  prevent  the  intrusion 

1  Peo.  V.  Steele,  231  111.  340. 
«  Halter  v.  State,  74  Neb.  757. 

5  Hayden's  case,  147  Cal.  649;   Huber  v.  Merkel,  117  Wia.  355;   Hor- 
wich  V.  Walker-Gordon  Lab.  Co.,  205  111.  497. 
*  State  V.  Duckworth,  5  Idaho,  642. 


142  Law  for  the  American  Farmer 

and  spread  in  the  community  and  to  eradicate,  after  they 
have  gained  a  foothold,  contagious  and  infectious  diseases 
among  men,  animals,  and  plants.  The  apprehension  of 
danger  to  the  pubhc  health  is  a  sufficient  justification  for 
exercising  the  pohce  power  even  to  the  restraining  of  the 
personal  hberty  of  the  citizen,^  and  all  legislation  to  con- 
serve, by  quarantine  and  inspection  laws,  the  health  and  to 
prevent  and  suppress  diseases  of  domestic  live-stock  is  a 
constitutional  exercise  of  the  police  power  of  the  state.^ 
A  state  may  lawfully  prohibit  and  punish  the  bringing 
of  live-stock  into  the  state  until  after  the  animals  have  been 
duly  inspected  and  officially  certified  to  be  healthy.^  The 
courts,  in  some  states  at  least,  take  judicial  notice  without 
requiring  proof,  that  Texas  cattle  ordinarily  suffer  from 
a  contagious  disease  popularly  called  "Texas  fever"  which 
will  infect  sound  beasts  of  other  states  with  which  the 
Texas  animals  are  allowed  to  mingle.*  The  courts  have 
declared  to  be  contagious  such  diseases  of  animals  as 
glanders  and  farcy  in  horses  ^  and  scab  in  sheep.^  A  statute 
making  it  a  misdemeanor  for  any  owner  of  sheep  to  neglect 
for  a  fortnight  to  report  an  outbreak  of  contagious  disease 
in  his  flocks  to  an  official  sheep  inspector  is  a  constitutional 
exercise  of  the  police  power.^  A  state  has  constitutional 
power  to  regulate  the  nursery  business  and  sales  of  nursery 
stock  because  trees,  shrubs,  and  plants  are  subject  to  de- 

»  Morris  v.  Columbus,  102  Ga.  792. 

*  Reid  V.  Peo.,  29  Colo.  333. 

»  State  V.  Asbell,  74  Kan.  397  ;  Aflf'd,  209  U.  S.  251. 

*  Grimes  v.  Eddy,  126  Mo.  168. 

*  Wirth  V.  State,  63  Wis.  51. 

«  Mount  V.  Hunter,  58  111.  246. 

7  North  V.  Woodland,  12  Idaho,  50. 


The  Police  Power  of  the  State  143 


^j 


structive  communicable  diseases.  It  may  to  this  end  re- 
quire license  fees  to  be  paid  and  bonds  to  be  given  by 
growers  and  dealers  or  certificates  of  inspection  to  be  obtained 
from  competent  entomologists  as  a  condition  precedent  to 
making  sales.  ^ 

§  94.     The  abatement  of  nuisances. 

The  police  powers  justify  the  summary  abatement  with- 
out a  resort  to  the  courts  of  everything  that  can  be  deemed 
a  public  nuisance.^  Summary  proceedings  to  abate  what- 
ever is  dangerous  to  the  public  health  or  safety  are  often 
necessary  and  have  always  been  permitted  when  authorized 
by  appropriate  legislation.^  Property  which  has  become  a 
nuisance,  or  which  unlawfully  exists,  or  which  is  injurious 
to  the  health,  morals,  or  safety  of  the  pubhc,  may  be  de- 
stroyed or  rendered  innocuous  without  compensating  the 
owner.^  Abating  a  nuisance  is  not  taking  property  for 
pubhc  use  and  requires  no  compensation  to  be  made.* 
The  constitutional  prohibition  against  taking  private 
property  for  public  use  without  compensating  the  owner 
does  not  apply  to  exercises  of  the  police  power.®  The 
legislature  may  constitutionally  clothe  boards  of  health 
with  power  to  use  all  means  necessary  to  the  protection 
of  the  public  health  even  to  the  destruction  of  private 
property.^     It  may  authorize  the  destruction  of  properly 

1  State  V.  Nelson,  15  L.  R.  A.  (N.  S.)  138. 

2  Lawton  ».  Steele,  152  U.  S.  133. 

3  State  V.  Main,  69  Conn.  123. 

*  Houston  V.  State,  98  Wis.  481. 

'-  State  V.  Meek,  112  Iowa,  338. 

«  Carthage  v.  Frederick,  122  N.  Y.  268. 

'  Lowe  V.  Conroy,  120  Wis.  151. 


144  Law  for  the  American  Farmer 

if  the  use  of  it  constitutes  a  nuisance.^  The  constitutional 
prohibition  against  depriving  any  person  of  his  property 
without  due  process  of  law  does  not  limit  the  power  of 
the  state  to  enact  laws  protective  of  the  public  health  and 
promotive  of  good  order  and  pubhc  safety.'  We  know 
of  no  limitation  of  legislative  power,  said  the  New  York 
Court  of  Appeals  on  one  occasion,  which  precludes  the 
legislature  from  enlarging  the  category  of  public  nuisances, 
or  from  declaring  places  or  property  used  to  the  detriment 
of  public  interests,  or  to  the  injury  of  the  health,  morals, 
or  welfare  of  the  community,  public  nuisances,  although 
not  such  at  common  law.  There  are,  of  course,  limitations 
on  the  exercise  of  this  power.  The  legislature  may  not  use 
it  as  a  cover  for  withdrawing  property  from  the  protection 
of  the  law,  or  arbitrarily,  where  no  public  right  or  interest 
is  involved,  declare  property  a  nuisance  for  the  purpose 
of  devoting  it  to  destruction,  and  if  the  courts  can  judicially 
see  that  the  statute  is  a  mere  evasion  or  was  framed  for 
the  purpose  of  individual  oppression,  they  will  set  it  aside 
as  unconstitutional.^ 

§  95.     The  power  to  destroy  private  property. 

The  state  in  the  exercise  of  the  police  power  may  by 
appropriate  legislation  always  devote  to  summary  de- 
struction private  property  inimical  to  the  public  wel- 
fare.^ Examples  of  such  legislation  are  very  numerous, 
and  it  is  worth  while  to  give  here  several  of  peculiar  interest 

1  State  V.  Yopp,  97  N.  C.  477. 
»  Deems  v.  Baltimore,  80  Md.  164. 
»  Lawton  v.  Steele,  119  N.  Y.  226. 
*  State  V.  Main,  supra. 


The  Police  Power  of  the  State  145 

to  farmers.  The  legislature,  for  instance,  may  declare 
hogs  to  be  public  nuisances  and  authorize  them  to  be 
killed  at  sight  without  thereby  depriving  their  owner  of 
his  property  without  due  process  of  law,  in  case  they  are 
found  running  at  large  on  or  near  the  public  levees  of 
rivers  which  they  are  likely  to  weaken  by  rooting.'  Again, 
cattle  stricken  with  a  malignant  contagious  disease  may 
lawfully  be  destroyed  as  a  menace  to  public  health. ^  The 
public  has  a  right  summarily  to  destroy  a  consumptive 
cow  without  compensating  its  owner  or  making  a  judicial 
investigation.^  A  general  law  making  all  animals  having 
infectious  or  contagious  diseases  common  nuisances  sub- 
ject to  sudden  slaughter  authorizes  the  kilhng  of  horses 
suffering  from  glanders.'*  A  police  officer  has  a  legal  right 
in  a  time  of  danger  from  hydrophobia  to  kill  an  unmuzzled 
dog  running  unattended,  contrary  to  a  municipal  ordi- 
nance.^ A  statute  requiring  peach  trees  v/hich  have 
been  attacked  by  the  "  yellows  "  to  be  destroyed  by  a 
pubUc  officer  is  a  valid  exercise  of  the  police  power.^ 
The  destruction  of  a  fruit  tree  affected  by  a  disease  like 
the  "yellows,"  communicable  to  other  trees,  against  the 
will  of  its  owner  and  \\dthout  giving  him  any  compensation, 
according  to  Judge  Baldwin  and  his  associates  of  the  Con- 
necticut Supreme  Court,  is  as  fully  within  the  police  power 
of  the  state  as  is  the  destruction  of  a  house  to  stop  a  spread- 
ing conflagration,  or  the  clothes  of  a  victim  of  small-pox. 

1  Ross  V.  Desha  Levee  Bd.,  83  Ark.  176. 

*  Lowe  V.  Conroy,  supra. 

'  New  Orleans  v.  Charouleau,  121  La.  890. 

*  Newark  &  S.  O.  R.  R.  v.  Hunt,  50  N.  J.  L.  308. 
s  Walker  v.  Towle,  156  Ind.  639. 

*  State  V.  Main,  supra. 

L 


146  Law  for  the  American  Farmer 

Such  property  is  not  taken  for  public  use ;  it  is  destroyed 
because  of  the  judgment  of  officials  to  whom  the  law  has 
given  the  power  to  decide  it  is  of  no  use  and  is  a  source 
of  public  danger.^  Village  trustees  charged  with  the  care 
and  safeguarding  of  the  public  highways  have  a  legal 
right  to  burn  down  a  mill  and  blow  up  a  mill-dam  in  a 
case  of  urgent  necessity  when  an  unusual  flood  in  the  mill 
stream  has  turned  aside  its  current  and  endangered  the 
highway  by  a  washout.^ 

§  96.     Official  immunity  and  liability  for  loss  or  damage 
by  exercises  of  the  police  power. 

As  a  general  rule,  when  a  public  officer  acts  in  good  faith 
and  by  authority  of  law  in  discharging  a  poMce  duty,  he  is 
not  liable  in  damages  to  any  one  who  may  be  injured  by  his 
conduct.  Boards  of  health  are  corporate  bodies  clothed 
with  public  powers  to  be  used  for  the  public  benefit,  and 
their  members  are  not  liable  in  private  litigation  for  what 
they  do  in  performing  their  official  duty.^  They  are  not, 
for  example,  personally  liable  for  a  loss  of  crops  by  a  person 
they  quarantined  for  a  contagious  disease  although  they 
were  mistaken  about  the  existence  of  the  disease.'*  A 
health  officer  sued  for  damages  for  kiUing  an  animal  may 
justify  the  slaughter  by  showing  that  he  killed  the  beast 
by  the  authority  of  a  reasonable  police  regulation  for  pro- 
moting the  public  health.^    This  general  rule  has  excep- 

>  Ibid. 

«  Aitken  v.  Wells  River,  70  Vt.  308. 

»  Forbes  v.  Escambia  Co.  Bd   of  Health,  28  Fla.  26. 

*  Bceks  V.  Dickinson  Co.,  131  Iowa,  244. 

'Barrett  v.  Mobile,   129  Ala.   179. 


The  Police  Power  of  the  State  147 

tions  which  require  pubhc  officers  to  make  sure  of  their 
facts  before  they  destroy  property  and  to  perform  their 
work  carefully.  To  justify  a  board  of  health  in  destroying 
property  as  a  nuisance  detrimental  to  health,  it  must  really 
be  a  nuisance.  If  it  is  not  such,  its  destruction  is  unlawful, 
but  the  determination  of  the  board  that  it  is  a  nuisance  is 
prima  facie  right.^  A  law  which  commands  the  killing  of 
animals  infected  with  contagious  diseases  \v\\\  not  protect 
an  officer  who  slays  a  sound  beast.^  Such  a  law,  or  one 
authorizing  the  slaughter  of  domestic  animals  which  have 
been  exposed  to  contagion,  will  justify  pubhc  officers  in 
killing  horses  suffering  from  or  which  have  been  exposed 
to  glanders,  but  an  officer  who  kills  a  horse  free  from  disease 
and  which  has  not  in  fact  been  exposed  to  infection  will 
be  liable  to  its  owner  even  though  he  acted  in  good  faith 
and  on  probable  grounds.^  A  sheep  inspector  who  under- 
takes to  dip  sheep  which  have  been  quarantined  and 
ordered  to  be  dipped  for  disinfection  is  hable  for  injuring 
the  animals  by  using  improper  materials  in  the  bath.* 
Laws  which  authorize  agents  and  officers  of  humane 
societies  to  kill  without  notice  to  the  owners  neglected 
or  abandoned  animals,  or  domestic  beasts  incapacitated  for 
any  use  by  age,  incurable  injury,  or  disease  are  held  to  be 
unconstitutional  because  they  deprive  people  of  their  prop- 
erty without  due  process  of  law.  To  be  constitutional,^ 
such  laws  should  at  least  provide  for  notice  to  the  owner 

1  Peo.  V.  Bd.  of  Health,  140  N.  Y.  1. 

2  Miller  v.  Horton,  152  Mass.  540. 

3  Pearson  v.  Zehr,  138  111.  48  ;  Lowe  v.  Conroy,  supra. 
*  Bair  v.  Struck,  29  Mont.  45. 

6  Carter  v.  Colby,  71  N.  H.  230;   Goodwin  v.  Toucey,  71  Conn.  262; 
King  V.  Hayes,  80  Me.  206. 


148  Law  for  the  American  Farmer 

of  the  condemned  brute  if  such  owner  is  known  or  discover- 
able.^ However  it  may  be  with  cats  and  dogs,  such  do- 
mestic animals  as  horses,  cattle,  sheep,  and  swine  may  not 
be  summarily  confiscated  and  destroyed  by  a  humane 
society  without  notice  to  the  owner,  and  a  statute  which 
should  assume  to  authorize  such  action  would  clearly  be 
unconstitutional. 2  It  is  no  defense  to  an  action  for  dam- 
ages for  destroying  property  that  the  property  was  worth- 
less ;  ^  the  right  to  maintain  an  action  for  the  value  of 
property  however  trifling,  of  which  the  OAvner  has  been 
deprived,  is  never  denied.'* 

1  Loesch  V.  Koehler,  144  Ind.  278. 

2  Fox  V.  Mohawk  &  H.  R.  Humane  Soc,  165  N.  Y.  517. 

»  Ft.  Wayne  Land  Co.  v.  Maumee  Gravel  Rd.,  132  Ind.  80. 
«  Wartman  v.  Swindell,  54  N.  J.  L.  589. 


CHAPTER  XIII 

THE   POLICE    POWER   IN   MUNICIPALITIES 

§§  97-101 

§  97.      The  relations  of  the  farmer  with  neighboring  towns. 

All  farmers  whose  farms  are  in  the  vicinity  of  cities  and 
incorporated  villages  have  occasion  to  visit  them  more  or 
less  frequently  either  for  recreation  or  to  transact  business 
with  their  inhabitants.  The  visits  for  business  may  be 
made  only  now  and  then  to  purchase  needed  suppUes  or 
at  regularly  recurring  intervals  to  market  the  numerous 
products  of  farm,  garden,  dairy,  and  orchard.  Whatever 
the  purpose  of  the  farmer's  visit  to  towTi,  he  will  come  under 
the  operation  of  sundry  local  laws,  municipal  ordinances, 
and  police  regulations  to  which  his  conduct  while  in  town 
must  conform.  In  general  these  by-laws  and  rules  are 
measures  designed  to  promote  the  pubUc  health  and  good 
hygienic  and  sanitary  conditions;  but  some  are  enacted 
to  secure  safety  and  good  order  among  the  people,  others 
make  for  the  convenience  and  comfort  of  the  citizens, 
others  regulate  traffic  on  the  public  streets,  and  some  are 
exercises  of  the  taxing  power.  All  measures  of  the  munic- 
ipality taken  to  preserve  the  public  health  are  exercises 
of  governmental  functions  ^  and  this  is  also  true  of  ordinances 
passed  for  the  other  purposes  mentioned. 

'  Love  V.  Atlanta,  95  Ga.  129. 
149 


150  Law  for  the  American  Farmer 

§  98.     Nuisances  in  municipalities. 

Anything  injurious  to  health,  obstructive  to  the  free 
use  of  property,  or  offensive  either  to  the  senses  or  to  de- 
cency that  interferes  substantially  with  the  enjoyment  in 
comfort  of  living  or  property  is  a  nuisance.^  A  munici- 
pal corporation  needs  no  express  statutory  power  to  abate 
what  is  really  a  nuisance,  and  to  destroy  that  which  creates 
the  nuisance,^  but  it  has  no  power  to  make  anything  a 
nuisance  which  is  not  a  nuisance  either  at  common  law 
or  by  some  statute.^  Municipal  ordinances  may  not  de- 
clare things  to  be  and  prohibit  them  as  nuisances  unless 
they  are  nuisances  in  fact."*  A  city,  however,  has  a  con- 
stitutional right  to  forbid  any  dairy  or  cow  stable  to  be 
estabhshed  and  maintained  within  its  limits  except  by  ex- 
press permission  of  a  municipal  ordinance.^  A  city  may 
constitutionally  be  invested  by  the  legislature  for  the 
protection  of  the  public  health  with  power  to  inspect  and 
regulate  the  keeping  of  cattle  and  to  destroy  kine  found  to 
be  tuberculous  \\athout  compensating  the  o\Mier  or  in- 
stituting judicial  inquiry,^  but  a  city  has  no  pov/er  and  may 
not  be  clothed  with  it  by  legislation,  it  has  been  decided 
in  one  case,  to  enter  private  property  and  suppress  as 
nuisances  pig-pens  and  cow  stables  distant  as  far  as  two 
miles  from  the  city  limits.^      A  chicken  house  properly 

'  Acme  Fertilizer  Co.  v.  State,  34  Ind.  App.  346. 

2  First  Nat.  Bank  v.  Sarlls,  129  Ind.  201. 

'  Hagerstown  v.  Bait.  &  O.  R.  R.,  107  Md.  178. 

*  Des  Plaines  v.  Foyer,  123  III.  348 ;  Tissot  v.  Gt.  So.  Tel.  Co.,  39  La. 
Ann.  996  ;  O'Leary's  case,  65  Miss.  80 ;  St.  Louis  v.  Heitzeburg  Packing 
Co.,  141  Mo.  375.  6  Fischer  v.  St.  Louis,  194  U.  S.  361. 

•  New  Orleans  v.  Charouloau,  121  La.  890. 
»  Malone  v.  Williams,  118  Tenn.  390. 


The  Police  Power  in  Municipalities         151 

cared  for  and  kept  clean  is  not  a  neighborhood  nuisance 
even  if  the  fowls  annoy  invalids  and  others  by  their  charac- 
teristic noises  and  odors. ^  Yet  a  municipality  may  forbid 
and  punish  as  a  nuisance,  in  some  places  at  all  events,  the 
keeping  of  hogs  in  hog-pens  within  the  city  limits  and 
nearer  than  two  hundred  feet  from  streets  and  alleys.^ 

§  99.     Animals  in  the  public  streets. 

Given  the  proper  legislative  authority,  a  city  may  law- 
fully penalize  owners  of  cattle  who  allow  the  beasts  to 
run  at  large  within  the  city  hmits.^  In  order  for  a  city 
to  enact  and  enforce  a  penal  ordinance  of  this  character, 
however,  it  must  have  a  more  specific  grant  of  power  from 
the  legislature  than  a  simple  general  authority  to  make  by- 
laws and  ordinances  to  promote  public  welfare  and  good 
order.*  A  municipal  ordinance  authorizing  after  a  judi- 
cial determination  of  its  violation  the  impounding  and  sale 
of  animals  found  at  large  is  valid.^  A  municipal  corpora- 
tion may  lawfully  forbid  horses  to  be  hitched  in  the  streets 
except  at  certain  designated  places,  and  may  punish  those 
who  disobey  it.®  A  city  or  village  may  declare  it  a  nuisance 
and  ordain  a  punishment  for  a  stallion  to  be  exhibited  in 
the  public  streets.^  It  is  clearly  a  nuisance  to  keep  stand- 
ing jacks  and  stallions  within  the  immediate  view  of  a 
private  dwelling,  especially  when  the  brutes  are  noisy  and 

1  Wade  V.  Miller,  188  Mass.  6. 

2  Miller  v.  Syracuse,  8  L.  R.  A.  (N.  S.)  471. 

3  Cochrane  v.  Frostburg,  81  Md.  54 ;    Wilson  v.  Beyers,  5  Wash.  303. 

*  Cosgrove  v.  Augusta,  103  Ga.  835  ;   Wilson  v.  Beyers,  supra. 
'  Armstrong  v.  Brown,  106  Ky.  81. 

•  Wells  V.  Mt.  Olivet,  11  L.  R.  A.  (N.  S.)  1080. 
7  State  V.  lams,  11  L.  R.  A.  (N.  S.)  736. 


152  Law  for  the  American  Farmer 

heard  day  and  night  ;^  that  is  offensive  to  decency  and 
entitles  the  householder  to  an  injunction.-  The  local 
authorities  may  lawfully  suppress  and  punish  as  a  nuisance 
the  service  at  stud  of  any  stalhon,  jack,  or  bull  in  pubHc 
places.^  Every  municipality  has  a  right,  and  it  is  its 
bounden  duty,  to  prevent  the  carcasses  of  dead  animals 
from  becoming  nuisances  in  its  streets,  and,  therefore,  it 
may  regulate  the  manner  and  limit  the  time  of  the  removal 
of  the  bodies  by  their  owners.*  If  the  owner  fails  to  re- 
move his  dead  beast  within  the  time  limited,  the  municipality 
may  make  away  wth  it  in  its  own  way.^  It  may  lawfully 
grant  a  contractor  the  exclusive  privilege  of  removing  the 
carcasses  of  animals  dying  in  the  streets.^  But  the  owner 
of  an  animal  does  not  lose  his  property  in  its  body  because 
it  dies  in  the  streets  of  a  city,  hence  he  is  entitled  to  a 
reasonable  time  and  opportunity  to  take  it  away.'' 

§  100.     Regulating  collection  and  removal  of  garbage. 

The  farmer  often  finds  a  profitable  use  for  the  house- 
hold refuse  of  his  city  neighbors,  and  the  denizens  of  the 
city  are  in  turn  desirous  of  getting  rid  of  it  as  soon  as 
possible  and   grateful    to  whosoever  will    regularly  take 

1  Hayden  v.  Tucker,  37  Mo.  214. 

2  Ibid.     Farrell  v.  Cook,  16  Neb.  483. 

5  Foote's  case,  70  Ark.  12  ;  Hoops  v.  Ipava,  55  111.  App.  94 ;  Nolin  v. 
Franklin,  4  Yerg.  163  ;   Robinson's  case,  30  Tex.  App.  493. 

*  Knauer  v.  Louisville,  20  Ky.  L.  Rep.  196. 

»  Schoen  v.  Atlanta,  97  Ga.  697;  State  v.  Morris,  47  La.  Ann.  1660; 
Meyer  v.  Jones,  20  Ky.  L.  Rep.  1632. 

•  Lowe's  case,  54  Kan.  757 ;  State  v.  Fisher,  52  Mo.  174 ;  Nat.  Fer- 
tilizer Co.  V.  Lambert,  48  Fed.  458. 

'  Campbell  v.  Dist.  Col.,  19  D.  C.  App.  131 ;  River  Rend'g  Co.  v. 
Behr,  77  Mo.  91. 


The  Police  Power  in  Municipalities         153 

it  away.  But  the  collection  and  removal  of  garbage  in 
cities  has  such  an  important  relation  to  health  and  sani- 
tation that  it  is  folly  to  leave  it  to  voluntary  and  desultory 
effort.  Its  regulation  is,  therefore,  a  proper  and  legitimate 
exercise  of  the  police  power.  The  courts  generally  hold 
that  municipal  corporations  invested  by  statute  with 
ordinary  police  powers  for  the  conservation  of  the  public 
health  and  improving  of  urban  sanitary  conditions  may 
lawfully  grant  exclusive  privileges  to  gather  and  remove 
garbage.^  Municipal  laws  and  ordinances  giving  certain  con- 
tractors exclusive  rights  to  collect  and  remove  garbage  and 
forbidding  under  penalties  all  others  to  do  so  are  perfectly 
valid  and  legal  exercises  of  the  police  power.^  Such  ordi- 
nances infringe  no  constitutional  right  of  the  farmer  or  any 
one  else.^  Where  such  ordinances  are  in  force  farmers 
can  be  punished  for  collecting  and  carrying  away  garbage 
in  violation  of  them;  for,  notwithstanding  garbage  may  not 
in  fact  be  a  nuisance  actually  detrimental  to  health,  this 
circumstance  wU  not  entitle  any  and  everybody  to  engage 
in  collecting  and  transporting  it  in  violation  of  a  municipal 
ordinance."*  Sometimes  municipalities,  instead  of  turning 
over  the  general  collection  and  removal  of  garbage  to  one 
or  more  public  contractors,  permit  any  one  who  meets  cer- 
tain prescribed  conditions  and  receives  a  license  to  do  so  to 
gather  and  carry  away  garbage.     In  such  a  case,  one  who 

>  Gardner  v.  Michigan,  199  U.  S.  325 ;  Atlantic  City  v.  Abbott,  73 
N.  J.  L.  281 ;  State  v.  Orr,  68  Conn.  101 ;  Gd.  Rapids  v.  De  Vries,  123 
Mich.  570. 

«  Her  V.  Ross,  64  Neb.  710 ;  Walker  v.  Jameson,  140  Ind.  591 ;  State 
V.  Payssan,  47  La.  Ann.  1029. 

3  California  Reduction  Co.  v.  Sanitary  Reduction  Co.,  199  U.  S.  306. 

*  State  V.  Orr,  supra. 


154  Law  for  the  American  Farmer 

wishes  to  take  up  and  remove  garbage  must  first  procure 
the  necessary  license.  If  a  Hcense  is  wrongfully  refused 
him,  he  may  not  proceed  without  it,  but  must  apply  to  the 
courts  to  compel  its  issue.^ 

§  101.     Huckstering. 

Almost  all  municipalities  are  clothed  by  the  legislature 
with  power  to  regulate  and  license  certain  occupations. 
The  farmer  who  carries  his  own  products  to  the  city  and 
retails  to  its  inhabitants  fruits,  garden  truck,  milk,  butter, 
eggs,  etc.,  is  interested  chiefly  in  the  ordinances  concerning 
hucksters.  A  city  by  virtue  of  its  police  power  may  estab- 
hsh  and  control  public  markets  and  regulate  and  supervise 
private  ones.  It  may  require  all  perishable  food  to  be 
sold  only  at  the  public  markets  or  other  designated  places, 
and  under  prescribed  conditions. ^  It  may  require  huck- 
sters to  keep  moving  except  when  actually  making  sales.' 
A  city  empowered  by  the  legislature  to  license,  regulate, 
and  tax  all  kinds  of  business,  and  to  inspect  all  food  prod- 
ucts and  dairies  and  charge  a  reasonable  fee  for  doing  so, 
may,  by  ordinance,  lawfully  exact  a  fee  of  fifteen  dollars 
for  each  wagon  used  in  distributing  milk,  a  moderate  license 
fee  for  each  cow  that  produces  milk  sold  within  the  city 
limits,  and  also  charge  a  reasonable  occupation  tax  to  dairy- 
men who  sell  butter  or  milk  in  such  city.^  But  a  city  has 
not  the  power  to  prohibit  altogether  the  sale  of  wholesome, 
if  perishable,  food  by  any  person  within  its  limits.^     An 

'  Ibid.  2  State  v.  Perry,  65  S.  E.  916. 

'  Shreveport  v.  Dantes,  118  La.  113. 

*  Birmingham  v.  Goldstein,  151  Ala.  473. 

'  State  V.  Perry,  supra. 


The  Police  Power  in  Municipalities         155 

ordinance  which  undertakes  to  impose  a  penalty  for  selUng 
within  the  municipal  limits  sound,  wholesome,  and  nutri- 
tious food  under  the  guise  of  a  health  and  sanitary  measure 
is  void.^  The  courts  have  held  such  ordinances  unreason- 
able and  null  in  respect  of  sales  of  fresh  pork  and  sausages 
in  the  summer  months,^  and  sales  of  meats,  fish,  butter, 
cheese,  and  vegetables  in  department  stores.^  A  general 
authority  given  by  the  legislature  to  a  municipal  corpora- 
tion to  make  by-laws  and  ordinances  to  promote  pubhc 
welfare  and  good  order  is  not  sufficiently  specific  to  enable 
it  to  ordain  and  enforce  penal  ordinances  preventing  people 
from  carrying  on  within  the  city  limits  any  lawful  trade 
or  business  in  a  lawful  way.* 

1  Helena  v.  Dwyer,  64  Ark.  424. 

^  Ibid. 

3  Chicago  V.  Netcher,  183  111.  104. 

«  Wilson  V.  Beyers,  and  Cosgrove  v.  Augusta,  supra. 


CHAPTER  XIV 

LAWS   TO   SECURE   PURE   MILK 

§§  102-108 

§  102.     The  general  regulation  of  milk  production  and  sale. 

In  recent  years  widely  throughout  the  United  States 
statutes  have  been  enacted  and  municipal  ordinances 
by  legislative  authority  adopted  relating  to  milk  sold  for 
public  consumption.  They  are  chiefly  health  measures 
pure  and  simple,  and,  in  so  far  as  they  are  such,  are  exer- 
cises of  the  police  power  for  the  protection  of  the  public 
health.  Time  and  time  again  epidemics  of  typhoid  fever 
have  been  traced  with  unerring  certainty  to  contaminated 
milk  supplied  to  the  communities  in  which  they  have  oc- 
curred. Germ-laden  milk  has  ever  been  a  potent  factor  in 
increasing  infant  mortality.  There  is,  too,  a  well-grounded 
opinion  among  medical  men  that  cases  of  tuberculosis  in 
human  beings  are  sometimes  caused  by  milk  drawn  from 
tuberculous  cows.  The  importance  of  milk  in  the  dietary 
of  the  people  cannot  be  overestimated ;  it  enters  every 
household  to  be  consumed  daily  by  virtually  every  person 
in  the  land.  Milk  is  so  easily  contaminated  innocently 
and  ignorantly,  it  is  so  difficult  even  with  the  widest  knowl- 
edge and  utmost  honesty  of  purpose  to  keep  it  free  from 
contamination,  and  there  are  so  many  places  between  cow 

156 


Laws  to  Secure  Pure  Milk  157 

and  consumer  where  it  may  become  infected  that  experi- 
ence has  made  it  necessary  to  adopt  and  enforce  the  most 
stringent  laws  to  insure  its  purity  and  richness  when  de- 
hvered  to  the  people.  Inasmuch  as  the  observance  of 
these  laws  entails  great  labor  and  some  additional  expense 
upon  everyone  engaged  in  milk  production  and  traffic,  their 
validity  has  been  challenged,  their  efficiency  denied,  their 
need  disputed,  and  their  enforcement  vigorously  combated. 
The  courts,  however,  have  generally  concurred  in  sustaining 
them  as  constitutional  exertions  of  the  police  power.  The 
equal  protection  of  the  laws  is  not  denied  to  milk  dealers 
by  singling  out  the  milk  business  of  a  city  for  regulation  if 
all  of  them  in  the  city  selected  are  affected  alike  by  the 
regulating  statute.^  The  courts,  it  may  be  added,  take 
judicial  notice  that  when  the  statutes  mention  milk,  they 
mean  the  fluid  secreted  by  female  mammals  to  nourish 
their  young  and  not  white  plant  juice,  such,  for  an  example, 
as  the  milk  of  the  coconut.^ 

§  103.     Sales   regulation   with   rejerence   to   conditions   oj 
production. 

It  is  a  valid  exercise  of  the  police  power  to  prohibit  under 
penalties  the  sale  of  milk  that  comes  from  unclean  and 
unsanitary  premises,^  or  that  is  drawn  from  cows  fed  with 
distillery  slops,^  or  upon  brewers'  slops  or  brewers'  grains.* 
The  courts  will  not  stop  to  inquire  in  prosecutions  for  vio- 

1  N.  Y.  V.  Van  de  Carr,  199  U.  S.  552. 

2  Briffitt  V.  State,  58  Wis.  39. 

'  State  V.  Broadbelt,  89  Md.  565. 

*  St.  Louis  V.  Schuler,  190  Mo.  524  ;   Sanders  v.  Com.,  117  Ky.  1. 

•  Sanders  v.  Com.,  supra. 


158  Law  for  the  American  Farmer 

lating  statutes  of  this  class  whether  the  milk  is  or  is  not 
unwholesome  or  detrimental  to  health ;  Mt  is  enough  that 
the  law  has  forbidden  it  to  be  sold.  The  state  may 
legally  delegate  its  police  power  to  any  municipal  corpo- 
ration and  authorize  it  to  make  and  enforce  ordinances  to 
secure  to  its  citizens  pure,  unadulterated,  wholesome  milk.^ 
The  sale  of  milk  from  kine  which  appear  by  the  tuberculin 
test  to  be  diseased  may  lawfully  be  prohibited  by  munic- 
ipal ordinance.^  It  is  not  unreasonable  in  a  municipal 
ordinance  to  require  owners  of  milch  cows  who  desire  to 
sell  milk  in  the  city  to  consent  that  the  animals  be  sub- 
jected to  the  tuberculin  test  as  a  condition  precedent  to 
allowing  them  to  sell  milk.'* 

§  104.     License  laws. 

A  city  has  the  power  to  license  and  regulate  the  sale  of 
milk  within  the  municipal  limits,  and  in  exercising  that 
power  it  may  lawfully  require  milkmen  to  pay  a  reasonable 
license  fee  and  may  prohibit  under  penalty  sales  of  milk  by 
unlicensed  dealers.^  A  statute  forbidding  any  person  to 
sell  milk  in  a  designated  city  mthout  first  procuring  a 
license  in  writing  from  the  local  board  of  health  is  a  con- 
stitutional police  regulation.^  So  is  a  statute  forbidding 
milk  to  be  received,  held,  kept,  offered  for  sale,  or  delivered 
within  a  particular  city  without  the  written  permission  of 
the  city  health  officers.^     So,  also,  is  a  provision  in  a  law 

'  Ibid.     St.  Louis  v.  Schuler,  supra. 
2  Norfolk  V.  Flynn,  101  Va.  473. 
«  State  V.  Nelson,  66  Minn.  166. 

*  Ibid.  6  Littlefield  v.  State,  42  Neb.  223. 

•  Peo.  V.  Van  de  Carr,  175  N.  Y.  440. 

»  Peo.  V.  N.  Y.  Health  Dept.,  189  id.  187. 


Laws  to  Secure  Pure  Milk  159 

regulating  sales  of  milk  and  cream  requiring  dealers  in 
those  commodities  to  register  with  the  local  health  com- 
missioners, pay  a  registration  fee,  and  procure  a  license 
before  they  are  allowed  to  sell  their  wares  to  the  public.^ 
A  board  of  health  may  lawfully  revoke  without  notice  a 
license  it  has  granted  to  sell  milk,  provided  it  does  not  act 
arbitrarily,  oppressively,  unreasonably,  and  upon  untruth- 
ful statements  in  doing  so ;  ^  but  if  in  revoking  a  license 
the  board  acts  tyrannically  and  upon  false  information,  it 
may  be  compelled  by  mandamus  to  issue  it  again.^ 

§  105.     The  right  to  seize  milk  without  payment. 

It  has  already  been  pointed  out  that  no  constitutional 
right  of  the  citizen  is  invaded  when  his  property  is  taken 
from  him  without  compensation  in  the  lawful  exercise  of 
governmental  police  power.  That  doctrine  has  been 
applied  when,  under  police  regulation  of  sales  of  milk, 
samples  of  it  are  taken  for  examination,  and  condemned 
milk  is  seized  and  destroyed.  A  health  officer  or  milk 
inspector,  if  the  statute  authorizes  him  to  do  so,  has  a  legal 
right  without  a  warrant  to  seize,  in  order  to  test  it,  milk  in 
quantities  necessary  for  that  purpose.^  A  penal  ordinance 
requiring  vendors  of  milk  to  the  general  public  to  furnish 
samples  of  milk  not  exceeding  a  half  pint  free  of  charge  to 
sanitary  inspectors  for  examination  and  analysis  is  valid.^ 
A  municipal  ordinance  adopted  by  a  city  empowered  by 

1  St.  Louis  V.  Grafeman  Dairy  Co.,  190  Mo.  507. 

*  Peo.  V.  N.  Y.  Health  Dept.,  supra. 
»  Ibid. 

*  St.  Louis  V.  Liessing,  190  Mo.  464. 

'  State  X.  Dupaquier,  46  La.  Ann.  577. 


160  Law  for  the  American  Farmer 

the  legislature  to  regulate  the  sale  of  milk  within  the  cor- 
porate limits  which  provides  for  the  inspection  of  all  milk 
brought  into  the  city  to  sell,  and  forbids  the  sale  and  au- 
thorizes the  destruction  of  milk  which  does  not  meet 
prescribed  tests,  is  valid.^  Milk  found,  when  tested,  to  fall 
below  the  standard  set  by  statute  or  ordinance  may  be 
summarily  condemned  by  the  official  inspectors  and  poured 
into  the  sewers  without  infringing  any  constitutional  right 
of  the  owner.2 

§  106.     The  right  to  prescribe  standards  of  richness. 

The  police  regulations  of  milk  traffic  which  have  pro- 
voked the  most  opposition  and  been  most  stubbornly  con- 
tested in  the  courts  have  been  those  which  set  up  standards 
of  quality  and  required  the  condemnation  and  destruction 
of  all  milk  which  failed  to  reach  the  prescribed  standards 
when  offered  for  sale  even  when  in  the  precise  state  in 
which  it  came  from  the  cows  and  wholly  regardless  of  any 
question  of  dilution  or  skimming  or  of  the  knowledge  or 
intent  of  the  dealer.  Yet  laws  of  this  character  have  been 
sustained  repeatedly  by  the  courts,  and  their  constitutional 
validity  is  now  well  established.^  The  legislature  for  the 
conservation  of  the  public  health  may  lawfully  declare  any 
commodities  sold  for  food  unwholesome  and  unfit  for  con- 
sumption and  may  penalize  their  sale  when  they  fail  to  reach 
a  prescribed  standard.'*     A  municipal  ordinance  is  not  so 

»  Deems  v.  Baltimore,  80  Md.  164. 

'  State  V.  Newton,  45  N.  J.  L.  469. 

3  State  V.  Campbell,  64  N.  H.  402  ;  State  v.  Smyth,  14  R.  I.  100 ;  State 
V.  Cresppnt  Cream.  Co.,  83  Minn.  284;  Peo.  v.  Cipperly,  101  N.  Y.  634; 
Corn.  V.  Warren,  160  Mass.  533. 

*  Peo.  V.  Biesccker,  16D  N.  Y.  53. 


Laws  to  Secure  Pure  Milk  161 

unreasonable  as  to  be  void  when  it  forbids  the  sale  of  milk 
containing,  according  to  a  prescribed  test,  less  than  three 
per  centum  of  butter  fat  ^  or  less  than  seven  tenths  of  one 
per  centum  of  ash,-  or  the  sale  of  cream  containing  less 
than  twenty  per  centum  of  fat.^  It  is  no  excuse  to  a 
person  prosecuted  for  selling  milk  below  the  standard  fixed 
by  law  to  prove  that  such  milk  came  from  the  cows  below 
grade  although  he  fed  the  animals  on  proper  food.^  Milk 
in  penal  statutes  against  adulteration  includes  cream  and 
milk  in  its  natural  state  from  which  cream  has  not  been 
taken  away.^  By  skimmed  milk,  when  the  words  are  used 
in  the  laws,  is  meant  milk  from  which  the  cream  has  been 
removed  in  any  maimer,  whether  by  the  old-fashioned 
process  of  skimming,  or  the  Cooley  process  of  drawing  off 
from  the  bottom  after  the  cream  has  risen,  or  by  the 
modern  mechanical  separator.^  Skimmed  milk  is  not 
classifiable  as  adulterated  milk  and  may  be  lawfully  sold 
for  what  it  is  under  laws  which  simply  prohibit  sales  of 
adulterated  milkJ 

§  107.     Laws  against  adulteration. 

To  adulterate  is  to  debase,  —  to  mix  an  impure  or  spuri- 
ous thing  with  a  pure  or  genuine  thing,  or  an  inferior  with 
a  superior  commodity  of   the  same  kind.^     Milk  diluted 

*  St.  Louis  V.  Grafeman  Dairy  Co.,  supra. 

*  St.  Louis  V.  Liessing,  supra. 

'  State  V.  Crescent  Cream.  Co.,  supra. 

*  State  V.  Campbell,  supra. 

'  Com.  V.  Gordon,  159  Mass.  8. 
«  Com.  V.  Hufnal,  185  Pa.  St.  376. 
'  Ibid. 

8  Groavenor  v.  Duffy,  121  Mich.  220. 
u 


162  Law  for  the  American  Farmer 

with  water  is  adulterated.^  The  power  of  a  state  to  prohibit 
and  penalize  the  sale  of  milk  to  which  water  or  anything 
else  however  harmless  has  been  added  even  as  a  preserva- 
tive is  indisputable. 2  The  state  may  constitutionally 
forbid  the  sale  of  milk  containing  preservatives,  regardless 
of  whether  they  are  or  are  not  actually  deleterious  to 
health.^  If  the  state  does  do  so,  the  courts  will  not  con- 
sider that  question.^  An  intent  to  defraud  is  not  a  neces- 
sary element  in  the  offense  committed  by  violating  a 
statute  forbidding  the  adulteration  of  milk  intended  for 
sale  by  the  addition  to  it  of  anything  whatever,^  An  em- 
ployer whose  servant  without  his  knowledge  maliciously 
adulterates  milk  delivered  to  customers  is  liable  for  any 
damage  that  directly  and  necessarily  results.^ 

§  108.     The  regulation  of  measures  of  quantity. 

The  police  power  of  the  state  has  long  been  exercised  to 
regulate  weights  and  measures  used  in  selling  commodities 
to  the  people.  The  laws  and  ordinances  for  this  purpose 
are  general  in  application  to  all  merchandise  and  have  long 
been  familiar.  They  have  required  all  weights  and  meas- 
ures to  conform  to  established  standards  and  to  be  in- 
spected and  certified  as  accurate.  They  have  forbidden 
and  penalized  the  use  of  false  weights  and  measures  and  of 
those  not  officially  sealed.  All  such  laws  apply  to  sales  of 
milk  by  measure  precisely  the  same  as  they  apply  to  sales 

1  Peo.  V.  West,  44  Hun,   162. 

«  State  V.  Schlenker,  112  Iowa,  642. 

'  St.  Louis  V.  Schuler,  supra. 

*  Ibid.     Sanders  v.  Com.,  supra. 

*  State  V.  Schlenker,  supra. 

*  Stranahan  Bros.  Catering  Co.  v.  Coit,  55  Ohio  St.  398. 


Laws  to  Secure  Pure  Milk  163 

of  other  commodities.  Thus,  when  a  statute  makes  it  a 
misdemeanor  to  sell  goods  by  unsealed  measures,  including 
milk,  a  seller  of  milk  at  wholesale  in  cans  not  officially 
sealed  cannot  recover  the  price  of  it  from  the  buyer.^ 
Certain  conditions  attendant  upon  the  sale  of  milk  pecul- 
iar to  the  traffic  have  made  these  laws  and  ordinances  in- 
effective, and  it  has  become  necessary  to  extend  their 
scope.  At  the  present  time  milk  is  almost  universally 
sold,  especially  at  retail,  in  glass  bottles  nominally,  prob- 
ably in  most  cases  actually,  containing  a  quart  or  a  pint 
of  the  fluid  each.  But  there  is  no  assurance  that  they  do 
in  fact  contain  the  quantities  they  are  supposed  to  hold 
when  filled.  A  municipal  ordinance  prohibiting  under 
penalties  milk  to  be  sold  in  glass  bottles  or  jars  not  per- 
manently stamped  or  marked  with  their  fluid  capacity, 
and  imposing  penalties  on  all  vendors  of  milk  in  glass 
bottles  or  jars  for  having  in  their  possession,  with  intent  to 
use  them  in  making  sales  and  deliveries  of  milk  or  cream, 
bottles  or  jars  that  hold  less  than  they  purport  to  contain, 
is  valid.2  It  is  no  defense  to  one  charged  with  selling  milk 
from  unmarked  bottles  in  violation  of  such  an  ordinance 
that  he  did  not  know  what  quantity  they  held.^ 

1  Miller  v.  Post,  1  Allen,  434. 

*  Chicago  V.  Bowman  Dairy  Co.,  234  111.  294. 

'Ibid. 


CHAPTER  XV 

PURE   FOOD   LAWS 
§§  109-113 

§  109.     General  scope  and  validity. 

The  power  of  the  legislature  to  enact  reasonable  laws, 
penal  and  otherwise,  to  prevent  and  punish  adulteration 
of  food  and  fraud  in  the  sale  of  provisions  is  beyond  ques- 
tion.i  The  legislature  is  the  sole  judge  of  the  necessity 
and  propriety  of  enacting  statutes  prohibiting  the  sophis- 
tication of  food  and  deceit  and  imposition  in  selling  it.^ 
All  articles,  simple  and  compound  alike,  which  man  uses 
for  food  or  drink  are  embraced  in  food  laws.^  They  do 
not  include  feed  for  animals  *  nor  yet  tobacco.^  In  many 
states  there  has  been  much  pure  food  legislation.  The 
legislature  of  New  Hampshire,  for  example,  has  enacted 
from  time  to  time  statutes  requiring  the  inspection  of  flour, 
beef,  pork,  butter,  lard,  and  fish,  regulating  the  sale  of 
milk  and  bread  and  penalizing  the  sophistication  of  these 
commodities  to  protect  the  public  from  fraud,  and  all  such 

1  State  V.  Marshall,  64  N.  H.  549. 

2  State  V.  Campbell,  64  id.  402. 

'  .\rbuckle  v.  Blackburn,  113  Fed.  Rep.  616;   Com.  v.  Hufnal,  4  Pa. 
Super.  Ct.  301. 

♦  Botelor  v.  Washington,  3  Fed.  Cas.  962. 
'  State  V.  Ohmer,  34  Mo.  App.  115. 

164 


Pure  Food  Laws  165 

acts  have  been  characterized  as  legitimate  and  constitu- 
tional exercises  of  the  police  power  of  the  state. ^  A 
statute  prohibiting  under  penalty  the  coloring,  coating,  or 
polishing  of  any  article  intended  for  food  so  as  to  conceal 
its  inferiority  or  damage  is  valid.^  A  statute  which  for- 
bids the  manufacture  and  sale  and  keeping  for  sale  of 
vinegar  artificially  colored  is  constitutional,  and  its  viola- 
tion is  punishable  even  if  the  coloring  matter  employed 
is  harmless.''  The  Ohio  statute  against  the  adulteration 
of  vinegar  is  violated  when,  in  making  low  wine  vinegar 
from  fermented  grain,  which  is  colorless  if  not  treated,  the 
fluid  is  passed,  before  it  becomes  acid,  through  roasted 
malt  simply  to  give  it  color,  aroma,  and  flavor.*  It  is  not 
essential  to  a  conviction  of  one  prosecuted  for  violating  a 
statute  prohibiting  the  sale  of  an  adulterated  article  of 
food,  and  defining  in  what  the  adulteration  shall  consist, 
to  prove  his  guiltj^  knowledge  or  criminal  intent.^ 

§  110.     Limitations  on  the  poiver  of  the  legislature. 

The  power  of  the  legislature  to  enact  pure  food  laws  is 
Bubject,  of  course,  to  constitutional  restrictions.  It  has  no 
power  to  make  the  mixing  or  commingling  of  articles  of 
food  or  foodstuffs  all  of  which  are  wholesome  and  nutri- 
tious criminal  acts  and  penalize  them.^  It  has  no  power 
to  prohibit  the  sale  of  an  article  of  food  indisputably  whole- 
some and  nutritious  under  its  own  proper  designation  and 

*  State  V.  Marshall,  supra. 

*  Arbuckle  v.  Blackburn,  supra. 
»  Peo.  V.  Girard,  145  N.  Y.  105. 

<  Weller  v.  State,  53  Ohio  St.  77. 

6  Peo.  V.  Snowberger,  113  Mich.  86;   Com.  v.  Weiss,  139  Pa.  St.  247. 

6  Dorsey  v.  State,  38  Tex.  Crim.  R.  527. 


166  Law  for  the  American  Farmer 

not  as  simulating  something  else.^  For  example,  the 
manufacture  and  sale  of  oleomargarine  as  such  is  per- 
fectly lawful  and  cannot  be  prohibited  without  violating 
the  constitution.  AH  the  legislature  may  constitutionally 
do  about  it  is  to  require  that  it  be  sold  for  precisely  what  it 
really  is  and  to  forbid  the  addition  to  it  of  anything  to 
make  it  look  like  dairy  butter.'  A  person  may  not  be  pun- 
ished under  a  pure  food  law  for  selling  oleomargarine  as 
wagon  grease.^  A  statute  not  designed  to  prevent  the 
adulteration  of  foods  which  should  forbid  the  use  of  any- 
thing, except  in  certain  cases  sugar,  salt,  or  ardent  spirits,  to 
preserve  dairy  products  without  declaring  other  preserva- 
tives adulterants  and  regardless  of  their  harmlessness 
would  be  unconstitutional.^ 

§111.     Congressional  legislation. 

The  acts  of  Congress  upon  this  subject  are  not  exer- 
cises of  the  police  power,  but  are  to  be  referred  either  to  the 
taxing  power  or  to  the  power  to  regulate  interstate  and 
foreign  commerce.  But  "the  power  to  tax  is  the  power 
to  destroy."  The  Congressional  power  to  tax  the  manu- 
facture and  sale  of  oleomargarine  is  unquestionable.^ 
Congress  has  not  only  the  constitutional  power  to  lay  a 
tax  on  oleomargarine,  but  also  to  lay  a  higher  tax  upon  it 
when  it  is  artificially  colored  than  when  it  is  not,  and  the 
courts  cannot  inquire  into  the  motives  of  Congress  in  thus 

>  state  r.  Layton,  160  Mo.  474. 

»  Pco.  r.  Hale.  114  N.  Y.  Supp.  945;   Peo.  v.  Fried,  118  id.  1131. 

'  Com.  V.  Schollenbergcr,  153  Pa.  St.  625. 

«  Peo.  r.  Biesecker.  169  N.  Y.  53. 

»  U.  8.  F.  Eaton,  144  U.  S.  677. 


Pure  Food  Laws  167 

discriminating,  since  the  taxes  are  conclusively  presumed 
to  have  been  laid  to  raise  revenue.^  Oleomargarine  is 
artificially  colored  so  as  to  be  subject  to  the  higher  tax 
when  there  is  added  to  it  only  a  small  quantity  of  a  vege- 
table oil  substantially  serving  no  other  purpose  than  to 
give  the  article  a  yellow  shade  and  make  it  resemble  butter,^ 
or,  when  there  is  added  butter  itself  which  has  been  arti- 
ficially colored.'^  The  sale  of  oleomargarine  in  original 
packages  as  imported  is  said  to  be  interstate  commerce  and 
so  subject  to  regulation  by  Congress,'*  but  this  is  disputed.^ 
The  object  of  the  Federal  legislation  concerning  oleo- 
margarine has  been  expressly  declared  by  the  Supreme 
Court  to  be  rather  the  raising  of  internal  revenue  and  the 
prevention  of  fraud  in  collecting  it  than  the  protecting  of 
purchasers  from  imposition.*'  And  the  same  tribunal  has 
held  constitutional  the  tax  under  the  act  of  Congress  of 
June  6,  1896,  on  filled  cheese  manufactured  for  export  and 
exported^ 

§  112.     State  legislation. 

Apart  from  the  acts  of  Congress  referred  to  and  the 
general  national  pure  food  laws,  there  has  been  much  legis- 
lation in  the  states  to  prevent  adulteration  of  food-products 
and  frauds  in  the  selling  of  them  to  the  public.  The  laws 
concerning  milk  production  and  sale  have  been  treated  in 

1  McCray  v.  U.  S.,  195  id.  27. 

2  Cliff  V.  U.  S.,  195  id.  159, 
'  McCray  v.  U.  S.,  supra. 

*  Gooch's  case,  44  Fed.  Rep.  276. 
6  Com.  V.  Huntley,  156  Mass.  236. 
«  Kollock's  case,   165  U.   S.  526. 
'  Cornell  v.  Coyne,  192  id.  418. 


168  Law  for  the  American  Farmer 

a  preceding  chapter  and  perhaps  all  that  may  be  necessary 
to  mention  here  as  likely  specially  to  interest  farmers  are 
such  as  relate  to  other  dairy  products.  Laws  to  prevent 
the  adulteration  of  dairy  products  and  forbidding  the 
manufacture  and  sale  of  counterfeit  butter  colored  to  re- 
semble the  genuine  article  are  not  open  to  the  objection 
that  they  deny  to  those  offending  against  them  the  equal 
protection  of  the  laws  in  violation  of  the  Federal  constitu- 
tion.^ A  statute  prohibiting  the  manufacture  and  sale  of 
any  substance  or  compound  imitating  yellow  butter  and 
not  composed  wholly  of  milk  or  cream  is  constitutional.^ 
A  state  has  the  constitutional  power  to  enact  a  statute 
requiring  under  stated  penalties  oleomargarine  and  arti- 
ficial or  adulterated  butter  to  be  colored  a  particular  hue, 
—  pink,  for  example,  —  wholly  different  from  the  color  of 
natural  unsophisticated  butter  made  from  cream,  and  such 
a  statute  is  valid.'  A  statute  which  forbids  the  manufac- 
ture, sale,  or  the  offering  for  sale  of  any  commodity  imitat- 
ing yellow  butter,  but  which  allows  oleomargarine  to  be 
sold  in  its  true  character  when  free  from  anything  resem- 
bhng  real  butter  in  appearance  is  valid  even  when  apphed 
to  sales  of  original  packages  imported  from  other  states.* 

§  113.     Laws  requiring  identifying  marks. 

The  state  in  the  exercise  of  the  police  power  has  a  con- 
stitutional right  to  forbid  the  sale  of  any  substance  not 

»  Powell  V.  Pennsylvania,  127  U.  S.,  678 ;    Capital  City  Dairy  Co.  v. 
Ohio.  183  id.  238. 

2  State  V.  Rogers,  95  Me.  94  ;  Butler  v.  Chambers,  36  Minn.  69. 

3  State  V.  Myers,  42  W.  Va.  822. 
*  Com.  V.  Huntley,  supra. 


Pure  Food  Laws  169 

pure  butter  and  yet  made  to  imitate  it,  unless  it  is  not  only 
sold  under  its  true  name  and  description,  but  as  well  in 
packages  plainly  marked  with  such  name.^  It  may  law- 
fully forbid  the  manufacture  and  sale  of  process  butter, 
unless  it  is  plainly  marked  "Renovated  Butter."  ^  ^  law 
which  regulates  under  penalty  the  sale  of  lard  in  order  that 
the  public  by  a  bare  inspection  of  the  package  may  tell 
what  ingredients  enter  into  it  or  were  used  in  preparing  it 
in  case  it  is  not  all  pure  fat  of  healthy  swine  is  open  to  no 
constitutional  objection.^  It  has  been  decided  in  England 
that  a  farmer  cannot  recover  the  price  of  butter  which  he 
sold  without  complying  with  a  statute  requiring  under 
penalties  the  branding  of  the  firkins  with  the  name  of  the 
maker  and  of  the  farmer  or  dairyman  who  made  and  packed 
the  butter,  and  the  weight  of  the  tare.'* 

1  State  ex  rel  Monnett  v.  Capital  City  Dairy  Co.,  62  Ohio  St.  350. 

2  Hathaway  v.  McDonald,  27  Wash.  659. 

3  State  V.  Snow,  81  Iowa,  642. 

*  Foster  v.  Taylor,  5  Barn  &  Adol.  887. 


CHAPTER  XVI 

CROPS,  AND  OTHER  FARM  PRODUCE 

§§  114-122 

§  1 14.     Husbandry,  and  the  products  oj  the  farm. 

Although  in  a  general  way  equivalent  to  agriculture, 
husbandry  is  somewhat  more  comprehensive.  It  is  the 
entire  business  of  farming.  It  includes,  not  only  the  culti- 
vation or  tillage  of  the  soil,  but  the  building  and  maintain- 
ing of  fences  and  drains.  It  embraces  also  the  raising  and 
fattening  of  live-stock  and  poultry  for  market,  the  man- 
agement of  the  dairy,  the  preparation  of  dairy  products, 
and  the  sale  of  domestic  animals,  fowls,  eggs,  crops,  fruit, 
and  garden  truck.^  Every  operation  of  the  farmer  under- 
taken to  increase  the  productivity  of  his  land,  or  the  qual- 
ity of  what  he  produces  in  order  to  gain  a  profit  from  his 
capital  and  labor  is  a  branch  of  husbandry.  By  farm 
products  is  usually  understood  grain,  —  wheat,  maize,  rye, 
oats,  and  barley  —  and  cotton,  fruits,  hay,  and  vege- 
tables, and  the  transmutation  brought  about  directly  or 
indirectly  by  the  cultivation  of  the  soil ;  and  in  a  broader 
sense,  horses,  cattle,  sheep,  and  swine.^  A  product  of 
agriculture  in  the  usual  sense  means  that  which  directly 

1  Simons  v.  Lovell,  54  Tenn.  510. 
i  State  V.  Kennerly,  98  N.  C.  659. 
170 


Crops,  and  Other  Farm  Produce  171 

results  from  husbandry  and  the  tillage  of  the  earth  —  a 
product  in  its  natural  unmanufactured  state,  cotton  and 
wheat,  for  examples,  but  not  calico  or  flour. ^  In  the 
common  parlance  and  practice  of  the  country  all  those 
things  have  been  considered  farming  or  agricultural  prod- 
ucts which  are  produced  upon  the  farm  or  brought  into 
condition  for  the  uses  of  society  by  the  labor  of  those  en- 
gaged in  agricultural  as  distinguished  from  manufacturing 
and  other  pursuits;  and,  therefore,  the  products  of  the 
dairy  and  the  poultry  yard,  while  they  do  not  come  directly 
out  of  the  soil,  are  deemed  none  the  less  agricultural  prod- 
ucts because  they  are  necessarily  connected  with  the  soil 
and  those  engaged  in  cultivating  it.^  Among  the  things 
which  the  courts  have  decided  are  embraced  in  the  term 
"farm  products,"  when  used  in  the  laws,  are  wheat,^  pine- 
apples,^ live-stock  and  fresh  meats,^  horses,  neat-cattle, 
sheep,  swine,  cord-wood,  hay,  vegetables,  fruit,  eggs, 
butter,  and  lard.^  The  question  has  usually  arisen  under 
laws  exempting  farm  products  from  statutory  burdens; 
thus  beef  cattle  raised  and  slaughtered  upon  a  farm  has 
been  held  to  be  a  product  of  the  farm  that  a  farmer  may 
sell  without  a  license  required  to  be  taken  out  by  vendors 
of  commodities  not  products  of  the  farm,'^  but  it  has  also 
been  held  that  live-stock  is  not  exempt  under  a  statute 
exempting  agricultural  products  from  taxation.^    A  statute 

1  Getty  V.  Barnes  Milling  Co.,  40  Kan.  281. 

2  Dist.  of  Col.  V.  Oyster,  15  D.  C.  Rep.  285. 

3  Union  Nat.  Bank  v.  German  Ins.  Co.,  71  Fed.  473. 
*  Long  V.  State,  42  Fla.  509. 

»  State  V.  Spaugh,  129  N.  C.  564. 

«  Phila.  V.  Da\as,  6  Watts  &  S.  269. 

»  Snyder's  case,  10  Idaho,  682.  «  Davis  v.  Macon,  64  Ga.  128. 


172  Law  for  the  American  Farmer 

authorizing  the  entry  of  lands  suitable  for  raising  agricul- 
tural crops  is  authority  for  the  entry  of  lands  only  good 
for  growing  fruit.^ 

§  115.     The  legal  status  of  growing  crops. 

It  is  often  of  the  highest  importance  to  the  farmer  to 
know  when  the  products  of  his  farm  are  to  be  deemed 
real  estate  and  a  part  of  the  land,  and  when  they  are  per- 
sonal property  to  be  dealt  with  regardless  of  the  ownership 
of  the  soil.  It  is  not  an  easy  thing  to  determine  this  in 
many  cases  and  for  some  purposes.  The  rights  of  pur- 
chasers, tenants,  and  mortgagees  of  the  farm  and  of  ex- 
ecutors, administrators,  heirs,  or  creditors  of  the  farmer 
are  very  often  greatly  affected  by  the  determination.  It 
may  be  said  that  as  a  general  rule  growing  crops  follow 
the  title  to  the  soil  in  which  they  are  rooted.^  They  are 
a  part  of  the  land  on  which  they  stand  when  both  belong 
to  the  same  owner.-^  If  not  expressly  reserved  when  the 
land  is  sold,  growing  crops  will  pass  by  the  deed  as  an  ap- 
purtenance to  it.*  Ungarnered  crops  pass  to  the  pur- 
chaser of  the  land  on  a  mortgage  foreclosure  sale,  but  those 
that  are  harvested  before  the  sale  is  confirmed  do  not.* 
If  a  crop  is  actually  standing  upon  the  land  when  it  is  sold 
on  mortgage  foreclosure,  it  will  pass  by  the  sale  to  the  pur- 
chaser notwithstanding  there  has  been  a  previous  sale  or 

'  Reeves  v.  Hyde,  77  Cal.  397. 

*  Wootton  V.  White,  90  Md.  64  ;  Jones  v.  Adams,  37  Ore.  473. 
3  Bagley  v.  Columbus  So.  R.  R.,  98  Ga.  626. 

*  Kammrath  v.  Kidd,  89  Minn.  380  ;  Crews  v.  Pendleton,  1  Leigh,  297 ; 
Turner  v.  Cool,  23  Ind.  56 ;  Gibbons  v.  Dillingham,  10  Ark.  9 ;  Coman 
p.  Thompson,  47  Mich.  22 ;   Wilkins  v.  Vashbinder,  7  Watts,  378. 

'  Reilly  v.  Carter,  75  Miss.  798. 


Crops,  and  Other  Farm  Produce  173 

mortgage  of  the  crop  made  by  the  farmer  to  another  per- 
son.^  To  be  good  against  a  subsequent  owner  of  the  land 
a  grant  of  a  right  to  gather  fruit  growing  or  to  be  grown 
must  be  in  writing  and  recorded  hke  a  deed.^  The  suc- 
cessful plaintiff  in  an  action  of  ejectment  is  entitled  to  the 
crops  growing  on  the  land  he  recovers.^  A  vendee,  how- 
ever, in  a  contract  for  the  purchase  and  sale  of  a  farm,  who 
goes  into  possession  of  the  land  under  it,  owns  the  crops  as 
long  as  he  is  not  in  default,*  unless  the  contract  expressly 
provides  otherwise.^  And  when  one  tenant  in  common 
is  in  the  sole  and  exclusive  possession  of  the  land  owned 
by  him  and  others  he  alone  is  the  owner  of  the  crops  he 
grows  and  harvests  while  his  possession  continues,  and  can 
recover  their  value  from  his  co-tenants  if  they  appropriate 
them.^ 

§  116.     Emblements. 

There  are,  however,  two  classes  of  crops ;  those  which 
grow  spontaneously  without  special  cultivation,  and  those 
which  result  from  the  annual  labor  of  sowing,  planting, 
fertilizing,  weeding,  etc.  The  former  class  are  always  a 
part  and  parcel  of  the  soil,  and  hence,  real  estate,  and  do 
not  become  personal  property  until  they  are  detached.^ 
The  latter  class  of  crops  are  termed  emblements.^     Em- 

1  Wootton  V.  White,  and  Jones  v.  Adams,  supra. 

«  Taylor  v.  Millard,  118  N.  Y.  244. 

3  Carlisle  v.  Killebrew,  89  Ala.  329  ;  McGinnis  v.  Femandes,  136  111.  69. 

*  Killebrew  v.  Hines,  104  N.  C.  182. 

6  Whiting  V.  Adams,  66  Vt.  679. 

«  Le  Barron  v.  Babcock,  122  N.  Y.  153. 

»  State  V.  Crook,  132  N.  C.  1053. 


174  Law  for  the  American  Farmer 

blements  are  the  annual  fruits  or  produce  of  seed  sown  or 
planted  —  the  crops  produced  by  labor  and  industry  and 
not  grown  spontaneously.^  They  include  such  products  as 
corn  and  cotton,^  hops  and  berries  borne  by  annual  plants,^ 
but  do  not  include  grasses,^  fruits  that  grow  on  trees,^ 
nor  small  fruits  that  grow  on  bushes.^  Thus,  for  ex- 
ample, blackberry  bushes  which  are  perennial  and  yield 
when  once  planted  successive  crops,  although  the  berries 
may  be  improved  in  quality  and  increased  in  number  by 
cultivation,  fertilization,  and  labor  applied  annually,  are 
none  the  less,  while  unpicked,  a  part  of  the  land,  and  so  not 
subject  to  seizure  and  sale  on  execution  as  personal  prop- 
erty/ Emblements,  on  the  contrary,  are  personal  prop- 
erty, and  not  real  estate.^  They  may  be  sold  orally,  as 
real  estate  may  not  be,  and  wholly  regardless  of  whether 
they  are  still  growing  or  have  ceased  to  be  nourished  by 
the  soil.^  While  still  standing  and  ready  for  harvesting, 
but  unharvested,  they  are  transferable  like  chattels.^''  They 
belong  to  the  tenant  instead  of  the  landlord,  and  pass  on 
the  death  of  the  landowner  to  the  administrator  and  not 
to  the  heir."  In  some  states  growing  grain  unreaped  is 
considered    personal    property.      This  is   so   in    Illinois, 

1  Owens  V.  Lewis,  46  Ind.  488 :   Cottle  v.  Spitzer,  65  Cal.  456. 

2  Walker  v.  State,  111  Ala.  29. 

3  Hamilton  v.  Austin,  36  Hun,  138. 
*  Perley  v.  Chase,  79  Me.  519. 

6  Rogers  v.  Elliott,  59  N.  H.  201. 
«  Sparrow  v.  Pond,  49  Minn.  412.  ''  Ibid. 

«  Westbrook  v.  Eager,  16  N.  J.  L.  81. 

»  Garth  v.  Caldwell,  72  Mo.  622  ;  Swafford  v.  Spratt,  93  Mo.  App.  631. 
10  Delaney  v.  Root,  99  Mass.  548  ;  Harris  v.  Frink.  49  N.  Y.  24  ;  Cayce 
r.  Stovall,  50  Miss.  396 ;  Willis  v.  Moore,  59  Tex.  628. 
"  State  X.  Crook,  supra. 


Crops,  and  Other  Farm  Produce  175 

California,  and  Pennsylvania,  in  particular ;  ^  and  in  the 
latter  state  it  is  well  settled,^  but  in  Alabama  ^  and 
North  Carolina^  it  is  not  the  case.  The  distinction 
made  in  law  when  crops  are  considered  as  property  by 
which  those  naturally  indigenous  and  requiring  neither 
care  nor  attention  from  man  to  bring  them  to  maturity 
are  deemed  real  estate  until  actually  severed  from  the 
soil,  and  crops  raised  annually  by  human  labor  and 
industry  are  considered  personal  property  while  still 
growing,  is  well  recognized  and  established.^  In  a  com- 
paratively recent  case  ^  in  Minnesota,  Judge  Mitchell 
of  the  Supreme  Court  of  that  state  clearly  and  succinctly 
stated  the  law  upon  the  subject.  At  common  law,  said 
he,  those  products  of  the  earth  which  are  annual  and  are 
raised  by  yearly  manuring  and  labor,  which  essentially  owe 
their  annual  existence  to  cultivation  by  man  —  termed 
"emblements,"  and  sometimes  "Jructus  industriales"  — 
were,  even  while  standing,  annexed  to  the  soil,  treated  as 
chattels  with  the  usual  incidents  of  such  in  respect  of 
seizure  on  attachment  during  the  owner's  life  and  trans- 
mission after  his  death.  This  class  included  grain,  gar- 
den vegetables,  and  the  like.  On  the  other  hand,  the  fruit 
of  trees,  perennial  bushes,  and  grasses  growing  from  peren- 
nial roots,  called  by  way  of  distinction  "frudus  naturales," 

>  Reed  v.  Johnson,  14  111.  257  :  Raventas  v.  Green,  57  Cal.  254. 
*  Backenstoss  v.  Stahler's  Est.,  33  Pa.  St.  251 ;   Hershey  v.  Metzgar, 
90  id.  217. 

3  McCall  V.  State,  69  Ala.  227. 

4  State  V.  Helmes,  27  N.  C.  364. 

6  Evans  v.  Hardy,  76  Ind.  527;    Brittain  v.  McKay,  235  N.  C.  265  J 
Edwards  v.  Thompson,  85  Tenn.  720. 
«  Sparrow  v.  Pond,  supra. 


176  Law  for  the  American  Farmer 

were  while  unsevered  from  the  soil  considered  to  pertain 
to  the  realty,  and  as  such  passed  to  the  heir  on  the  death 
of  the  owner  and  were  not  subject  to  attachment  during 
his  life.  A  possible  exception  to  this  classification  is  the 
case  of  hops  on  the  vines  which  have  been  held  to  be  per- 
sonal chattels  and  subject  to  sale  as  such.  The  ground  of 
this  appears  to  be  that  although  the  roots  of  hops  are 
perennial,  the  vines  die  yearly,  and  the  crop  from  the  new 
vines  is  wholly  or  mainly  dependent  upon  annual  cultiva- 
tion. It  is  sometimes  stated,  he  continued,  that  the  test 
whether  the  unsevered  product  of  the  soil  is  an  emblement, 
and  as  such  personal  property,  is  whether  it  is  produced 
chiefly  by  manuring  and  the  industry  of  the  owner ;  but, 
while  this  test  is  correct  as  far  as  it  goes,  it  is  incomplete. 
Under  modern  improved  methods  all  fruits  are  cultivated, 
the  quality  and  quantity  of  the  yield  depending  more  or 
less  upon  the  annual  expenditure  of  labor  upon  the  trees, 
bushes,  or  vines,  but  it  has  never  been  held  that  fruit  grow- 
ing on  cultivated  trees  was  subject  to  levy  as  personal 
property.  No  doubt  all  emblements  are  produced  by 
manuring  and  the  labor  of  the  owner,  and  are  "Jructus 
industriales"  for  that  reason;  but  the  manner  as  well  as 
the  purpose  of  planting  is  an  essential  element.  If  the  pur- 
pose of  planting  is  not  the  permanent  enhancement  of  the 
land  itself,  but  merely  to  secure  a  single  crop  which  is  to  be 
the  sole  return  for  the  labor  exT^ended,  the  product  would 
naturally  fall  under  the  head  of  emblements.  On  the  other 
hand,  if  the  tree,  bush,  or  vine  is  one  which  requires  to  be 
planted  but  once  and  will  then  bear  successive  crops  for 
years,  the  planting,  naturally,  would  be  calculated  per- 
manently to  enhance  the  value  of  the  land  itself,  and  the 


Crops,  and  Other  Farm  Produce  177 

product  of  any  one  year  could  not  be  said  essentially  to 
owe  its  existence  to  labor  expended  during  that  year,  and, 
hence,  it  would  be  classed  among  "  fructus  naturales''  and 
the  right  of  emblements  would  not  attach.  This  classifi- 
cation, he  added,  is,  of  course,  more  or  less  arbitrary,  but 
it  is  the  one  uniformly  adopted  by  the  courts  and  it  is  the 
only  one  which  will  furnish  a  definite  and  exact  rule. 

§  117.     Effect  of  severing  crops  from  the  soil. 

All  crops  cease  to  be  real  estate  and  become  personal  prop- 
erty as  soon  as  they  are  severed  from  the  land.^  Thus, 
a  crop  grown  upon  a  farm  which  is  exempt  as  a  homestead, 
as  long  as  it  remains  unharvested,  is  exempt  also,  but  it 
loses  its  immunity  after  it  has  been  gathered.^  And  crops 
grown  by  one  in  actual  possession  of  land  under  a  claim 
of  right  belong  to  him  if  he  harvests  them  before  he  is 
ousted  by  the  owner  of  the  true  title.^  It  is  ordinarily 
a  trespass  and  not  a  larceny  to  take  and  carry  away  against 
its  owner's  will  a  part  of  the  real  estate,  because  in  general 
real  property  is  not  the  subject  of  a  larceny,*  but  this  rule 
is  not  allowed  to  interfere  with  the  punishment  of  a  thief. 
The  courts  in  such  cases  find  a  way  out  of  the  theoretical 
difficulty  by  invoking  the  rule  that  property  severed  from 
the  freehold  is  by  the  act  of  severance  converted  from  real 
into  personal  estate.^  Thus,  it  is  held  that  crude  turpen- 
tine, in  boxes  formed  by  cuts  in  the  trees  made  to  catch 
it  as  it  exudes,  when  it  is  in  a  state  ready  to  be  dipped  up, 

1  Jones  V.  Adams,  supra. 
«  Coates  V.  Caldwell,  71  Tex.  19. 

3  Faulcon  v.  Johnston,  102  N.  C.  264 :   Johnston  v.  Fish,  105  Cal.  420. 
*  Junod  V.  State,  73  Neb.  208.  ^  j^id. 

N 


178  Law  for  the  American  Farmer 

is  personal  and  not  real  property.  It  is,  say  the  courts, 
no  longer  a  part  of  the  tree,  although  still  lying  in  it,  for 
it  has  been  separated  by  cultivation  and  labor  and  become 
a  chattel.  The  box  cut  in  the  tree  is  a  mere  receptacle 
to  catch  and  hold  the  sap.  If,  then,  a  person  feloniously 
takes  and  carries  away  crude  turpentine  from  the  tree- 
boxes  without  the  consent  and  against  the  will  of  the 
owner,  he  is  guilty  of  larceny  and  may  be  punished  accord- 
ingly.^ Of  course  the  same  thing  would  be  true  if  maple 
sap  should  be  stolen  in  similar  circumstances. 

§  118.     Damages  for  the  loss  or  destruction  of  crops. 

A  farmer  whose  groAving  crops  are  destroyed  by  the  fault 
or  negligence  of  another  may  recover  their  value  from  the 
careless  or  faulty  one.^  The  measure  of  damages  when 
growing  crops  are  injured  or  destroyed  is  their  value  at 
the  time  of  the  injury  or  destruction  and  not  their  value 
in  the  market  when  matured  and  harvested  or  during  the 
seUing  season.^  The  cost  of  a  grovving  crop  up  to  the  time 
of  its  destruction  is  not  the  measure,*  neither  is  the  depre- 
ciated rental  value  of  the  land.^  When  full  grown  forest 
trees  or  nursery  stock  ready  for  market  are  destroyed  the 
ordinary  measure  of  damages  is  their  value  severed  from 
the  soil.^  Crops  planted  by  a  landoumer  upon  his  land 
after  a  railroad  has  been  located  there  but  before  he  has 

»  state  V.  Moore,  11  Ired.  L.  70  ;  Dickens  v.  State,  142  Ala.  49. 
s  Fremont,  E.  &  M.  Val.  R.  R.  v.  Marlcy,  25,  Neb.  138. 
»  Lester  v.  Highland  Boy  Gold  Mining  Co.,  27  Utah,  470. 

*  Teller  v.  Bay  &  R.  Dredging  Co.,  12  L.  R.  A.  (N.  S.)  267. 

*  Byrne  v.  Minneapolis  &  St.  L.  Ry.,  38  Minn.  212. 

*  Dwight  V.  Elmira  C.  &  N.  R.  R.,  132  N.  Y.  199. 


Crops,  and  Other  Farm  Produce  179 

been  given  notice  of  an  intention  to  enter  and  before  his 
compensation  has  been  paid  or  secured,  constitute  a  proper 
item  of  damage  to  him  from  the  taking  of  his  land  ;  ^ 
the  landowner  has  a  right  in  such  case  to  cultivate  his 
land  up  to  the  time  the  railroad  takes  it  and  to  receive 
compensation  for  the  growing  crop  destroyed  by  its 
entry.  2 

§  119.     Rights  of  landlord  and  tenant  in  the  crops. 

In  the  ordinary  case  when  a  farm  is  leased  for  a  fixed  rent, 
whether  payable  in  money  or  produce  or  both,  the  crops 
grown  and  harvested  during  the  tenancy  belong,  of  course, 
to  the  tenant.  But  questions  frequently  arise  when  the 
lease  is  up,  or  the  tenancy  is  otherwise  terminated.  It  is 
held  in  Michigan  that  in  general  a  farm  tenant  who  sur- 
renders the  farm  while  a  crop  is  growing  has  no  right  after- 
wards to  the  crop.^  In  Pennsylvania,  on  the  other  hand,  a 
tenant  of  agricultural  lands  is  entitled  to  the  "way  going 
crop";  that  is,  the  crop  sown  and  cultivated  during  the 
tenancy  but  wiiich  does  not  mature  until  after  the  term  has 
expired.*  The  rule  is  the  same  in  Delaware.^  In  Nebraska, 
if  the  tenancy  of  the  farm  is  uncertain  as  to  time,  so  that 
the  tenant  cannot  certainly  know  when  it  will  end,  if  it  does 
end  before  a  crop  that  he  has  sown  ripens,  he  is  entitled 
to  re-enter  the  land  and  harvest  the  crop  at  its  maturity.^ 
A  landlord  who  re-enters  the  farm,  after  the  lease  is  forfeited 

1  Lafferty  v.  Schuylkill  River  E.  S.  R.  R.,  124  Pa.  St.  297. 

2  Ibid. 

3  Kiplinger  v.  Green,  61  Mich.  340 ;   Smith  v.  Sprague,  119  Mich.  148. 
*  Stultz  V.  Dickey,  5  Binney,  285. 

^  Ellison  V.  Dolbey,  3  Penn.  (Del.),  45. 
«  Monday  v.  O'Neil,  44  Neb.  724. 


180  Law  for  the  American  Farmer 

is  entitled  to  the  crops  then  gro\\dng  on  the  land.^  A 
farm  tenant  has  the  same  right  to  the  straw  gro^\Ti  upon 
the  farm  during  the  tenancy  that  he  has  to  the  grain.  It 
belongs  to  him  and  he  may  take  it  away  and  dispose  of  it,'* 
and,  in  those  states  where  he  has  a  right  to  take  the  crop 
after  his  term  expires,  he  has  a  right  for  a  reasonable  time 
afterwards  to  come  back  and  take  the  straw.^  In  a  number 
of  the  states  there  are  statutes  which  give  the  landlord  a 
lien  for  rent  upon  the  crops  gro^^m  upon  the  leased  land ;  * 
some  of  these  statutes  extend  the  lien  to  all  the  products 
of  agriculture  raised  on  the  farm  and  secure  advances  and 
supphes  as  well  as  rent.^  The  landlord's  hen  for  rent 
attaches  to  the  crops  as  well  when  the  rent  is  payable 
partly  in  produce,  as  when  it  is  payable  wholly  in  money, 
and  even  though  the  crops  are  exempt  from  general  debts 
of  the  tenant.^  One  who  buys  a  crop  from  a  tenant  takes  it 
subject  to  the  landlord's  hen  when  the  law  gives  such  a 
lien.''  Under  statutes  giving  a  landlord  a  hen  for  advances 
upon  the  tenants'  crops,  goods  he  furnished  to  stock  a 
plantation  shop  for  supplying  the  field  hands  and  other 
laborers  have  been  held  to  be  "advances,"  ^  and  so,  too, 
has  table  board  furnished  to  the  tenant  and  his  family,^ 

1  Myer  v.  Roberts,  50  Ore.  81. 

*  Craig  V.  Dale,  1  Watts  &  S.  509 ;  Colville  v.  Miles,  127  N.  Y.  159. 
'  Smith  V.  Boyle,  66  Neb.  823. 

*  Buttt).  Ellett,  19  Wall.  544  ;    Morgan  v.  Campbell,  22  id.  381 ;   Wal- 
worth V.  Harris,  129  U.  S.  3.55 ;   Saloy  v.  Bloch,  136  U.  S.  338. 

»  Ball  V.  Sledge,  82  Miss.  749  ;  Cain  v.  Pulk-n,  34  La.  Ann.  511 ;  Brown 
V.  Brown,  109  N.  C.  124. 

*  Keim  v.  Myers,  89  N.  E.  Rep.  373. 

'  Beck  V.  Minnesota  &  W.  Grain  Co.,  131  Iowa,  62. 

*  Cain  V.  Pullen,  supra. 

*  Brown  v.  Brown,  supra. 


Crops,  and  Other  Farm  Produce  181 

But  these  statutes  do  not  give  the  landlord  a  lien  upon 
the  crops  for  becoming  a  surety  for  the  tenant  upon  his 
buying  a  horse. ^ 

§  120.     Crops  grown  on  shares. 

An  agreement  between  a  landowner  and  another  person 
that  the  latter  shall  occupy  and  cultivate  a  farm  belong- 
ing to  the  former  and  that  each  shall  furnish  part  of  the 
seed,  implements,  and  stock  and  divide  the  products  or 
the  receipts  from  their  sale  does  not  create  a  partnership 
but  the  relation  of  landlord  and  tenant.^  The  owner  and 
tenant  of  a  farm  leased  for  a  term  of  years  upon  an  agree- 
ment to  divide  the  produce  equally  are  tenants  in  common 
of  the  crops. ^  If  no  time  for  dividing  the  crop  is  fixed 
when  a  farm  is  let  on  shares,  the  division  is  due  when  the 
crop  is  harvested  and  overdue  after  a  reasonable  time  has 
elapsed  since  it  was  garnered.^  A  tenant's  agreement  to 
dehver  to  the  landlord  half  of  all  the  crops  is  not  fully  per- 
formed until  the  shares  have  been  divided  and  set  apart  .^ 
The  title  to  crops  grown  on  land  rented  to  a  season  cropper 
and  the  right  to  their  possession  are  in  the  landlord  until 
his  claims  are  satisfied.^  A  cropper's  share  is  due  only 
when  the  crop  is  harvested.'^  A  cropper  has  no  interest 
in  the  growing  crop  that  he  can  sell  or  mortgage,^  except 

1  Kaufman  v.  Underwood,  83  Ark.  118. 

2  Shrum  v.  Simpson,  155  Ind.  160. 

3  Aiken  v.  Smith,  21  Vt.  172 ;    Frost  v.  Kellogg,  23  Vt.  308. 
■•  Jones  V.  Adams,  supra. 

5  Hurd  V.  Darling,  14  Vt.  214. 

«  Betts  V.  State,  65  S.  E.  Rep.  841. 

'  Lamberton  v.  Stouffer,  55  Pa.  St.  284. 

«  Ponder  v.  Rhea,  32  Ark.  435. 


182  Law  for  the  American  Farmer 

in  cases  where  a  statute  provides  otherwise.^  It  has 
been  held  in  CaHfornia  that  a  crop  raised  by  a  tenant  on 
shares  is  in  certain  circumstances  subject  to  levy  upon  an 
execution  against  him,^  but  in  general  this  is  not  so.* 

§  121.     Estovers. 

In  legal  nomenclature  concerning  farm  tenancies,  esto- 
vers are  wood  and  timber  which  the  tenant  is  entitled  to 
take  from  the  land  during  the  tenancy  for  fuel,  fences, 
improvements,  and  repairs.  Estovers  are  of  three  kinds: 
first,  house-bote,  or  timber  necessary  to  repair  the  farm 
buildings  and  for  fuel  to  heat  them;  second,  plow-bote, 
or  wood  required  to  make  or  repair  implements  of  hus- 
bandry ;  and  third,  hay-bote,  or  materials  needed  to  repair 
hedges  and  fences.'*  The  right  of  a  farm  tenant  to  estovers 
is  an  incident  to  the  mere  leasing  of  the  farm.^  In  exer- 
cising the  right  of  estover  the  tenant  must  not  destroy  or 
dispose  of  the  timber  nor  do  any  permanent  injury  to  the 
estate.®  He  is  allowed  to  cut  only  what  he  needs  for  im- 
mediate use  and  such  as  is  fit  for  that  use.'  It  is  a  general 
principle  that  what  he  does  cut  must  be  used  on  the  farm 
and  not  elsewhere.*  A  tenant  of  a  farm  has  the  right  to 
use  fallen  and  dead  timber  for  firewood,  but  must  not  fell 
growing  trees  for  that  purpose.^    It  is  waste  when  a  tenant 

1  Parks  V.  Webb,  48  Ark.  293. 

*  Farnum  v.  Hefner,  79  Cal.  575. 

3  Tipton  V.  MartzcU,  21  Wash.  273. 

*  Anderson  v.  Cowan,  125  Iowa,  259. 
B  Ibid. 

•  Zimmerman  v.  Shreeve,  59  Md.  357. 

■'  Ibid.  8  Ibid. 

•  Anderson  v.  Cowan,  supra. 


Crops,  and  Other  Farm  Produce  183 

cuts  down  ornamental  trees  or  cuts  timber  to  sell  at  a 
profit,^  and  for  such  waste  the  tenant  is  liable  in  damages.^ 
But  if  a  tenant  in  good  faith  and  mistaking  his  rights 
commits  technical  waste  by  cutting  timber  to  put  into 
buildings  constructed  and  left  on  the  land,  the  measure  of 
damages  against  him  is  the  value  of  the  timber  in  the 
stump,  with  interest  from  the  time  it  was  appropriated.^ 

§  122.     Manure. 

Considered  as  farm  produce,  crops  and  manure  are  essen- 
tially different.  Crops  are  raised  of  purpose  to  be  harvested 
and  removed  from  the  land.  With  the  possible  exception 
of  hay  and  fodder,  crops  are  grown  to  be  sold,  and  are  in- 
come and  profits.  Manure,  on  the  other  hand,  is  never  sold 
unless  by  very  thriftless  husbandmen,  but  is  returned  to 
the  land  to  enrich  the  soil.  Manure,  therefore,  is  seldom 
or  never  to  be  deemed  personal  property,  but  always  as 
belonging  to  the  land.*  Manure  made  upon  a  leased  farm 
by  the  consumption  of  the  produce  of  the  farm  belongs  to 
the  landlord  and  not  to  the  tenant.^  A  tenant  has  no  right 
to  remove  manure  produced  on  the  leased  land  during  his 
term,^  unless  it  is  produced  by  stock  in  excess  of  the  number 
that  the  farm  can  support  and  which  are  fed  by  fodder 
procured  elsewhere.'^  When  that  is  the  case  the  excess 
manure  belongs  to  the  tenant  and  not  to  the  landlord.* 

»  Calvert  v.  Rice,  91  Ky.  533  ;  Learned  v.  Ogden,  80  Miss.  769. 

2  U.  S.  V.  Bostwick,  94  U.  S.  53. 

3  Lewis  V.  Virginia-Carolina  Chem.  Co.,  69  S.  C.  364. 
■•  Sawj-er  v.  Twiss,  26  N.  H.  345. 

B  Pickering  v.  Moore,  67  N.  H.  533. 

«  Brigham  v.  Overstreet,  128  Ga.  447  ;  Roberts  v.  Jones,  71  S.  C.  404. 

'  Nason  v.  Tobey,  182  Mass.  314.  *  Pickering  v.  Moore,  supra. 


CHAPTER  XVII 

LIVE-STOCK 

§§  123-135 

§  123.     Animals  in  the  statutes. 

A  statute  which  refers  to  "animals"  or  "dumb  animals" 
without  mentioning  particular  species  includes  every  living 
creature  but  man.^  Penal  statutes  are  not  so  broadly 
construed.  A  law,  for  example,  which  penalizes  the  killing 
of  beasts  embraces  cows  ^  and  hogs  ^  but  not  dogs.*  If  a 
statute  speaks  of  swine  or  hogs,  either  in  the  singular  or 
plural,  all  animals  of  the  hog  species,  living  and  dead  — 
boars,  sows,  pigs,  shoats,  and  dressed  pork  carcasses,  are 
included.^  The  statutes  which  exempt  animals  from 
execution  are  quite  numerous  and  in  the  main  have 
been  construed  with  inclusive  liberality.  One  that  ex- 
empts a  milch  cow  has  been  held  to  exempt  a  heifer  that 
the  debtor  was  raising  to  supply  milk  later  to  his  family.^ 
An  exemption  of  beasts  of  the  plow  includes  horses,^    and 

1  Peo.  V.  Brunell,  48  How.  Pr.  435. 
«  Taylor  v.  State,  25  Tenn.  285. 
3  State  V.  Enslow,  10  Iowa,  115. 

*  U.  S.  V.  Gideon,  1  Minn.  292 ;   State  v.  Phillips,  1  Shannon,  Cas.  34, 
'  Lavender  v.  State,  60  Ala.  60 ;    Whitson  v.  Culbertson,  7  Ind.  195 ; 
State  V.  Godet,  29  N.  C.  210;   Rivers  v.  State,  10  Tex.  App.  177. 
'  Nelson  ».  Fightmaster,  4  Okla.  38. 
">  Somers  v.  Emerson,  58  N.  H.  48. 

184 


Live-stock  185 

one  of  horses  extends  to  colts/  geldings, ^  jackasses/  and 
mules.^  A  single  horse,  wagon,  and  harness  is  exempt 
under  a  statute  exempting  a  team,^  and  a  single  ox  under 
one  exempting  a  yoke  of  oxen.^  It  is  not  necessary  for 
steers  to  be  actually  broken  and  put  at  work  to  be  exempt 
as  a  yoke  of  oxen.''  Yet  it  has  been  held  that  for  a  team 
to  be  exempt  under  a  statute  exempting  a  team  of  horses 
simply  as  such,  it  must  be  used,  or  in  good  faith  be  in- 
tended for  use,  as  an  instrument  of  labor  to  support 
the  owner  and  his  family.^  Whether  this  is  sound 
law  or  not,  high-bred  carriage  horses  used  to  drive  their 
owner  to  and  from  his  business  and  to  take  his  family 
out  for  recreation  are  not  exempt  as  "work  horses  ";  ^ 
no  horses  are  if  kept  merely  for  pleasure  driving  ^^  unless 
owTied  by  a  liveryman  who  earns  his  livelihood  by  hiring 
them  out  to  others."  A  statute  exempting  a  farm  horse 
exempts  a  stallion  used  on  a  farm  for  farm  work,^-  but  not 
one  kept  solely  for  breeding  purposes.^^  If,  however,  a 
statute  exempts  a  team  by  means  of  which  the  owner 

1  Kennedy  v.  Bradbury,  55  Me.  107  ;   Berg  v.  Baldwin,  31  Minn.  541. 

2  Allison  V.  Brookshire,  38  Tex.  199. 

3  Robinson  v.  Robertson,  2  Will.  Civ.  App.  Cas.  §§  253-254. 

*  State  V.  Cunningham,  6  Neb.  90 ;    Richardson  v.  Duncan,  49  Tenn. 
220 ;    Allison  v.   Brookshire,  supra. 

^  Lockwood  V.  Younglove,  27  Barb.  505 ;    Dains  v.  Prosser,  32  Barb. 
290. 

«  Mallory  v.  Berry,  16  Kan.  293  ;  Wolfengbarger  v.  Standifer,  35  Tenn. 
659. 

^  Berg  V.  Baldwin,  supra;  Mundell  v.  Hammond,  40  Vt.  641. 
«  Burgess  v.  Everett,  9  Ohio  St.  425. 
9  Tishomingo  Sav'gs  Inst.  v.  Young,  87  Miss.  473. 
»»  Washburn  v.  Goodheart,  88  111.  229 ;  Hickok  v.  Thayer,  49  Vt.  372. 
"  Root  V.  Gay,  64  Iowa,  399.        »2  Tipton  v.  Pickens,  31  Tenn.  25. 
"  Robert  v.  Adams,  38  Cal.  383 ;   Kreig  v.  Fellows,  21  Nev.  307. 


186  Law  for  (he  American  Farmer 

habitually  earns  his  living,  it  will  exempt  a  staUion  when 
the  owner  subsists  on  the  fees  gained  from  the  services 
of  the  brute. ^ 

§  124.     Registration  of  animals. 

The  laws  requiring  the  registration  of  animals  are  exer- 
cises of  the  police  power.  Those  of  the  most  important 
class  are  designed  to  aid  in  the  conservation  of  pubhc 
health,  as,  for  example,  those  that  apply  to  milch  kine. 
A  state  may  constitutionally  require  all  herds  of  cattle  be- 
longing to  persons  who  supply  milk  for  public  consumption 
to  be  registered  with  live-stock  sanitary  commissioners 
or  public  health  boards  as  a  condition  of  selling  the  milk.2 
A  typical  statute  of  this  kind  was  enacted  in  Maryland 
about  twenty  years  ago.^  The  act  created  a  state  live- 
stock sanitary  board  charged  with  sundry  duties  looking 
to  prevent  the  occurrence  and  spread  of  contagious  and 
infectious  disease  among  domestic  animals  in  the  state. 
It  imposed  a  duty  upon  every  dair3Tnan,  herdsman,  or 
other  person  who  supphed  milk  to  the  inhabitants  of  cities, 
towns,  or  villages  to  register  their  cattle  with  the  state 
live-stock  sanitary  board  imder  a  penalty  of  a  fine  varying 
from  four  to  twenty  dollars  for  each  refusal  or  neglect. 
The  statute  was  a  general  regulation  of  the  business  of 
producing  and  vending  milk  for  public  consumption,  and 
its  validity  was  sustained  after  a  careful  and  thorough 
argument  and  consideration."    Colorado  enacted  a  statute 

»  McCue  V.  Tunstead,  65  Cal.  506. 

*  State  V.  Broadbelt,  89  Md.  666. 
'  L.  1888,  Chap.  619. 

*  State  V.  Broadbelt,  supra. 


Live-stock  187 

in  1899  requiring  every  one  o\;vning  or  using  any  docked 
horse  within  the  state  to  register  the  animal  with  the 
county  clerk  and  recorder  in  the  county  where  the  brute 
was  kept,  within  ninety  days  after  the  passage  of  the  law. 
This  act  required  the  certificate  of  registration  to  contain 
the  name  and  post  office  address  of  the  owner  of  the  docked 
horse  and  to  describe  fully  the  color,  age,  size,  and  sex  of 
the  animal  and  the  use  to  which  it  was  put.  The  statute 
made  it  unlawful  for  any  one  to  dock  the  tail  of  a  horse 
within  the  state,  or  to  import  a  docked  horse,  or  to  drive, 
work,  use,  race,  or  deal  in  any  docked  horse  not  registered 
under  the  law.  This  statute  also  was  sustained  as  a 
constitutional  exercise  of  the  pohce  power,^  except,  in  so 
far  as  it  prohibited  the  importation  from  other  states  and 
subsequent  use  of  docked  horses,  that  part  of  the  law  was 
deemed  an  interference  with  interstate  commerce  and  there- 
fore in  conflict  with  the  Federal  constitution.^  Maine  has 
a  statute^  requiring  the  owner  or  keeper  of  any  stalhon 
before  advertising  the  services  of  the  beast  to  file  a  cer- 
tificate with  the  county  registrar  of  deeds,  giving  the  name, 
color,  age,  size,  and  pedigree  of  the  animal  and  the  name 
of  the  person  who  bred  it.  The  law  makes  neglect  to 
file  such  certificate  fatal  to  an  action  to  recover  compen- 
sation for  the  service  of  the  stalUon  and  the  filing  of  a 
false  certificate,  if  knowingly  and  wilfully  done,  subject 
to  a  fine  of  one  hundred  dollars.  This  statute  does  not 
apply  in  a  case  w^here  the  purchaser  of  a  mare  with  foal 
agrees  to  pay  the  seller,  as  part  of  the  price,  a  sum  of  money 
for  the  service  of  the  sire  after  the  colt  is  born.^     Nor  does 

1  Bland  v.  Peo.,  32  Colo.  319.  ^  Stubbs  v.  Peo.,  40  Colo.  414. 

«  R,  S.,  Chap.  38,   §  61.  *  Wyman  v.  Wentworth,  10  Atl.  454. 


188  Law  for  the  American  Farmer 

it  apply  to  claims  where  the  stallion  has  not  been  adver- 
tised or  held  out  to  the  public  as  available  for  breeding 
purposes.^  In  Kentucky  a  contract  for  the  service  of  a 
stallion  is  void  when  the  owner  of  the  animal  has  not  com- 
plied with  the  statute  of  that  state  requiring  him  to  pro- 
cure a  license  or  be  deemed  guilty  of  a  misdemeanor  and 
be  fined.2 

§  125.     Cruelty  to  animals. 

Penal  statutes  against  cruelty  to  animals  are  now  vir- 
tually universal  in  civilized  communities.  They  need  not 
be  particularly  cited.  Their  general  provisions  are  famil- 
iar. No  private  right  of  property  is  invaded  when  the 
owners  of  animals  are  forbidden  to  treat  them  cruell3^^ 
A  criminal  statute  providing  for  the  punishment  of  every 
person  who  maliciously  disfigures  any  horse,  cattle,  or 
other  animal  applies  when  injuries  are  wantonly  in- 
flicted, whether  slight  or  serious,  temporary  or  permanent 
in  effect.  It  extends  to  every  injury  done  with  malice 
toward  the  owner  and  which  lessens  the  value  of  the  in- 
jured beast.*  Thus,  one  is  punishable  under  such  a  statute 
for  shaving  the  mane  and  tail  of  a  horse.^  The  docking 
of  horses'  tails  may  be  forbidden  and  punished  as  cruelty 
to  animals.^  One  engaged  in  violating  a  statute  against 
cruelty  to  animals  by  beating  a  horse  cannot  escape 
liability  to  a  by-stander  whom  he  strikes  and  injures,  on 

»  Briggs  V.  Hunton,  87  Me.  145. 

2  Smith  V.  Robertson,   106  Ky.  472. 

'  State  V.  Karstcndiek,  49  La.  Ann.  1621. 

^  State  V.  Harris,  11  Iowa,  414. 

0  Boyd  V.  State,  21  Tenn.  39.  «  Bland  v.  Peo.,  supra. 


Live-stock  189 

the  ground  that  the  blow  was  occasioned  by  the  simul- 
taneous shying  of  the  horse  and  the  slipping  of  his  own 
foot,  which  he  could  not  have  anticipated.^  One  who 
poisons  another's  horses  may  be  convicted  and  punished 
under  a  penal  statute  for  unlawfully  destroying  another 
person's  property  ;2  and  if  he  poisons  fowls  belonging  to 
another,  he  may  be  convicted  and  punished  for  the  offense 
under  a  statute  which  mentions  only  horses,  cattle,  and 
other  beasts.^  It  was  held  in  one  case  that  a  man  was 
not  justified  in  killing  chickens  by  the  invasion  of  the  fowls 
into  his  garden  to  eat  his  pease,  and  that  for  doing  so  he 
was  subject  to  prosecution  for  violating  the  statute  against 
cruelty  to  animals.  His  remedy,  according  to  the  court,  in 
that  case  was  either  to  sue  for  damages  or  else  to  impound 
the  fowls  until  their  owner  made  good  his  loss.'* 

§  126.     E  strays. 

Throughout  the  country  laws  and  ordinances  which 
authorize  the  arrest,  impounding,  and  sale  of  stray  animals, 
sometimes  quite  summarily,  are  common.  It  behooves  an 
owner  of  live-stock  to  know  in  what  circumstances  he  is  liable 
to  lose  his  property  in  case  the  beast  wanders  off.  An  estray 
has  been  defined  legally  to  be  an  animal  found  wandering 
unattended,  the  owner  of  which  is  unknown.^  It  is  a  roving 
beast,  free  from  the  care,  control,  or  custody  of  its  o\\Tier, 
or    one    unsought,    unclaimed,    or    abandoned    by   him.^ 

1  Osborne  v.  Van  Dyke,  113  Iowa,  557. 
*  Peo.  V.  Christy,  65  Hun,  349. 

5  Com.  V.  Falvey,  108  Mass.  304.  *  State  v.  Neal,  120  N.  C.  613. 

'  Lyman  v.  Gibson,  18  Pick.  422;  Roberts  v.  Barnes,  27  Wis.  422; 
Walters  v.  Glats,  29  Iowa,  437.  '  Roberts  v.  Barnes,  supra. 


190  Law  for  the  American  Farmer 

Cattle  running  free  on  the  ranges  where  they  were  raised 
are  not  estrays/  but  if  in  a  general  round-up  of  the  herd 
any  particular  animal  is  missing  and  has  wandered  off  to 
a  distant  locality  and  got  lost,  that  particular  beast  is  an 
estray.2  A  domestic  animal  that  has  temporarily  escaped 
from  the  custody  of  its  owner  and  strayed  a  short  distance 
away,  but  is  neither  lost  nor  abandoned,  nor  roaming  about 
the  country  unknown,  is  not  properly  classed  as  an  estray.^ 
A  stolen  horse  which  the  thief  left  tied  to  a  post  in  the  high- 
way is  not  an  estray;^  neither  are  a  pair  of  horses  estrays 
which  the  owner  left  standing  at  the  roadside  while  he 
entered  a  restaurant.^  Every  law  which  authorizes  stray 
animals  to  be  impounded  and  sold  must  be  strictly  com- 
plied with  in  every  particular  for  the  proceedings  to  be 
valid.^ 

§  127.     Animals  running  at  large. 

Animals  are  said  to  run  at  large  when  they  are  not  under 
the  control  of  their  owner  or  of  any  drover,  shepherd,  or 
herdsman,  but  are  left  to  roam  wheresoever  they  will.^ 
They  are  beasts  wandering  and  feeding  at  will,  not  under  the 
immediate  supervision  and  control  of  any  one,  and  whether 
on  open  or  inclosed  land.^  They  are  running  at  large  in  a 
public  highway  when  strolling  along  the  road  without  re- 

1  Shepherd  v.  Hawley,  4  Ore.  206. 

*  Stewart  v.  Hunter,  16  Ore.  62. 
3  Weber  v.  Hartman,  7  Colo.  13. 

*  Hall  V.  Gildersleeve,  36  N.  J.  L.  235. 
1  Alok  V.  Gerke,  6  Hawaii  Ter.  569. 

«  Ft.  Smith  V.  Dodson,  51  Ark.  447. 

■<  Hinman  v.  Chicago,  R.  I.  &  Pac.  R.  R.,  28  Iowa,  491. 

«  Keeney  v.  Oregon  Ry.  &  Nav.  Co.,  19  Ore.  291. 


Live-stock  191 

straint.^  A  horse  or  colt  running  at  large  in  the  highway 
contrary  to  law  is  classed  as  a  nuisance.^  Cattle  left  alone 
by  a  boy  given  charge  of  the  animals  while  he  returned 
home  half  a  mile  distant  and  sent  another  boy  to  take  his 
place  were  held  to  be  running  at  large  from  the  time  the 
first  boy  left  until  the  second  arrived.^  But  cattle  grazing 
in  the  highway  in  plain  view  of  the  owner's  family  are  not 
running  at  large.*  Nor  can  cattle  be  deemed  to  be  run- 
ning at  large  in  the  highway  merely  because  the  drover  in 
charge  fell  asleep  and  they  casually  cropped  the  grass  by  the 
roadside.^  Upon  the  same  principle  a  team  of  horses  drawing 
a  sleigh  and  wandering  on  a  prairie  at  night  because  the 
driver  is  in  a  drunken  stupor  is  not  running  at  large.^ 
A  law  forbidding  under  penalties  hogs  to  run  at  large 
does  not  deprive  the  owners  of  swine  of  their  property 
without  due  process  of  law  by  providing  that  such  hogs 
may  be  impounded  and  sold.''  And  although  it  has  been 
decided  that  such  a  law  is  constitutional,  notwithstanding 
it  provides  for  a  summary  sale  of  the  animals  to  pay  charges,^ 
yet  in  another  jurisdiction,  with  what  seems  to  be  sounder 
reasoning,  it  is  held  to  be  essential  to  the  validity  of  such  a 
law  that  it  shall  provide  for  some  sort  of  a  judicial  proceed- 
ing to  determine  the  fact  that  the  animals  were  unlawfully 
at  large  and  the  amount  and  propriety  of  the  charges.^ 

1  Wright  V.  Clark,  50  Vt.  130. 

2  Baldwin  v.   Ensign,  49  Conn.    113. 

3  Valleau  v.  Chicago,  M.  &  St.  P.  R.  R.,  73  Iowa,  723. 
«  Eklund  V.  Toner,  121  Mich.  687. 

*  Thompson  v.  Corpstein,  52  Cal.  653. 

«  Grove  v.  Burlington,  C.  R.  &  N.  R.  R.,  75  Iowa,  163. 

T  Haigh  V.  Bell,  41  W.  Va.  19.      »  Burdett  v.  Allen,  35  W.  Va.  347. 

»  Greer  v.  Downey,  61  L.  R.  A.  408. 


192  Law  Jor  the  American  Farmer 

§  128.     Liability  of  owner  for  acts  of  domestic  animals. 

The  liability  of  the  owner  of  a  domestic  animal  for  an 
injury  done  by  it  depends  in  general  upon  his  negligence, 
and  that  is  measured  by  the  consideration  of  whether  or 
not  he  ought  in  reason  to  have  anticipated  that  the  brute 
would,  if  the  opportunity  offered,  inflict  such  injury,  and 
whether,  if  he  ought  to  have  expected  this,  he  took  or 
omitted  proper  steps  to  prevent  the  occurrence.  Ordinarily 
the  owner  of  a  domestic  animal  which  injures  another  in 
person  or  property  is  excused  from  liability  unless  he  ought 
reasonably  to  have  foreseen  and  guarded  against  its  happen- 
ing. This  principle  has  been  apphed  in  numerous  cases. 
Thus,  in  each  of  the  following  cases  the  owner  of  the  beast 
that  did  the  injury  was  exonerated :  where  hogs  broke 
into  an  adjoining  field  and  killed  a  cow  and  her  new-born 
calf  ;^  where  a  turkey-cock  strutting  and  gobbling  in  a 
highway  frightened  a  horse  into  running  away ;  ^  where 
bees  attacked  and  severely  stung  horses  going  along  the 
highway,^  when  for  seven  years  they  had  occupied  the  same 
place  and  behaved  well ;  where  a  cow  of  peaceable  dis- 
position, driven  to  frenzy  by  dogs,  broke  away  and  injured 
a  traveler  on  the  highway ;  *  where  a  bull  jumped  a  strong 
fence  that  had  restrained  him  for  a  fortnight  and  gored  a 
mare  in  the  next  field ;  ^  where  another  bull  driven  on  the 
highway,  with  its  horns  tied  to  one  fore  hoof,  suddenly 
turned  from  the  straight  road  and  tossed  a  person  over  a 

>  Lyke  v.  Van  Leuven,  4  Denio,  127. 

'  Zumstein  v.  Shrumm,  22  Ont.  App.  263. 

3  Earl  V.  Van  Alstine,  8  Barb.  630. 

*  Moynahan  v.  Wheeler,  117  N.  Y.  285. 

'  Weide  v.  Thicl,  9  111.  App.  223. 


Live-stock  193 

bridge  rail ;  ^  where  a  horse  that  had  never  before  acted 
viciously,  left  hitched  to  a  wagon  by  the  roadside,  bit  a 
person  passing  by ;  ^  and  where  a  stallion  broke  a  strong 
halter,  and  pushed  open  a  stable  door  supposedly  securely 
fastened  and  killed  a  mare  in  a  neighboring  field.^  No  one 
is  liable  for  what  he  could  not  have  prevented  and,  there- 
fore, is  not  liable  under  a  statute  making  the  owner  of  an 
animal  running  at  large  liable  for  any  damage  it  may  do 
when,  without  his  knowledge,  the  beast  breaks  out  of  a 
strong  enclosure  at  night  and  kills  another  animal.^  The 
owner  of  an  animal  not  known  to  be  vicious  is  ordinarily 
not  hable  for  an  injury  it  does  while  in  a  place  where  it 
has  a  right  to  be,^  but  it  is  otherwise  if  its  owner  is  aware 
that  it  is  vicious  and  the  animal  is  where  it  ought  not  to  be 
when  it  does  the  injury.^  If  a  domestic  animal  is  habit- 
ually vicious  and  prone  to  mischief,  its  owTier  is  presumed 
to  know  its  bad  traits  and  is  charged  \\ath  the  duty  of  keep- 
ing it  from  injuring  others;''  thus,  a  traveler  on  the  high- 
way attacked  without  cause  by  a  steer  need  only  prove 
the  animal  vicious  in  order  to  recover  damages  from  the 
owner.*  The  habit  of  an  animal  is  proved  by  successive 
acts  of  a  like  kind.^  A  father  who  sends  his  son  out  upon 
the  highway  to  deliver  a  message,  knowing  the  youth  to  be  a 

1  Barnum  v.  Terpening,  75  Mich.  557. 
«  Reed  v.  So.  Exp.  Co.,  95  Ga.  108. 
'  Meredith  v.  Reed,  26  Ind.  334. 
*  Briscoe  V.  Alfrey,  61  Ark.  196. 

'  Morgan  v.  Hudnell,  52  Ohio  St.  552 ;  Clowdis  v.  Fresno  Flume  Co, 
118  Cal.   315. 
'^  Ibid. 

»  Knowles  v.  Mulder,  74  Mich.  202 ;   Strouse  v.  Leipf ,  101  Ala.  433. 
'  Harris  v.  Carstens  Packing  Co.,  43  Wash.  647. 
»  Kennon  v.  Gihner,  131  U.  S.  22. 
o 


194  Law  for  the  American  Farmer 

reckless  rider  and  mounted  on  an  unruly  horse,  is  negligent; 
and  if  the  animal  proves  uncontrollable  and  does  an  injury, 
is  liable.^  A  statute  making  every  person  who  drives  a 
herd  of  animals  over  a  pubhc  hillside  road  liable  for  all  the 
damage  the  beasts  do  either  in  destroying  the  banks  or 
rolling  stones  into  the  highway  is  constitutional.^ 

§  129.     LiaUlities  and  redress  for  diseased  animals. 

The  owner  of  diseased  cattle  is  liable  in  damages  if  he 
allows  the  brutes  to  run  at  large  when  he  knows  or  has  good 
reason  to  beheve  that  they  have  an  infectious  disease,  if  they 
infect  other  stock ;  ^  but  he  is  not  Uable  to  the  owner  of 
other  animals  that  catch  the  disease  from  his  stock  be- 
cause of  a  defective  and  insufficient  fence  between  the 
respective  grazing  lands.^  And  if  the  owner  of  scabby 
sheep  keeps  his  flock  confined  in  his  own  pasture,  he  is  not 
liable  in  damages  to  his  neighbor  whose  sheep  in  an  ad- 
joining field  become  infected.^  When  one  who  owns  a 
drove  of  hogs  which  he  knows  to  have  a  dangerous  and 
contagious  disease  sells  the  animals  to  a  dealer  in  live-stock, 
who  in  turn  innocently  and  ignorantly  sells  them  to  a  cus- 
tomer, he  is  liable  to  such  customer  when  the  hogs  pur- 
chased  communicate  the  disease   to   his   other   healthy 

stock.^ 

The  damages  recoverable  in  such  a  case  are  not  only  the 
value  of  the  purchased  hogs,  but  also  and  as  well  the  loss 

»  Broadstreet  v.  Hall,   168  Ind.   192. 

«  Brimm  v.  Jones,  11  Utah,  200. 

»  Clarendon  Land  Co.  v.  McClelland,  89  Tex.  483. 

4  ihid.  '  Fisher  v.  Clark,  41  Barb.  329. 

•  Skinn  v.  Reutter,  135  Mich.  57. 


Live-stock  195 

sustained  by  the  infection  and  death  of  the  healthy  ani- 
mals.^ One  who  buys  from  an  innocent  consignee,  sup- 
posing it  to  be  sound,  a  horse  which  the  public  authorities 
killed  because  it  had  glanders,  can  recover  damages  from 
a  railroad  company  that  brought  the  animal  into  the  state 
and  delivered  it  without  obeying  a  statute  requiring  the 
brute  to  be  inspected  and  certified  free  from  any  contagious 
disease  before  delivery.^  He  who  deceitfully  sells  a  horse 
which  he  knows  to  be  infected  with  glanders  to  a  purchaser 
who,  in  caring  for  the  beast,  contracts  and  dies  of  the  disease 
is  liable  for  the  injury.^  And  one  who  sells  to  a  butcher 
a  live  steer  admittedly  and  visibly  diseased  may  be  con- 
victed and  punished  under  a  penal  statute  prohibiting  the 
sale  or  exposure  for  sale,  knov/ingly,  of  the  flesh  of  any 
diseased  animal.^ 

§  130.     Runaway  horses. 

It  is  negligence  to  leave  a  horse  loose  and  unattended  in 
a  public  street,  and  its  owner  is  liable  for  the  injuries  the 
animal  inflicts,  by  running  away,  upon  a  person  not  himself 
in  fault.^  When  a  person  injured  by  a  runaway  horse 
sues  the  owner  for  damages,  the  defendant's  negligence  is 
made  out  when  it  is  shown  that  he  left  the  animal  alone 
and  unsecured  in  a  city  street  in  violation  of  a  municipal 
ordinance.^     That  proof  is  enough  to  entitle  the  injured 


1  Ibid. 

2  Evans  v.  Chicago  &  N.  W.  R.  R.,  122  N.  W.  Rep.  876. 

3  State  V.  Fox,  79  Md.  614. 

*  Com.  V.  Horn,  13  Pa.  Co.  Ct.  164. 
^  Damonte  v.  Patton,  118  La.  530. 

*  Siemers  v.  Eisen,  54  Cal.  418. 


196  Law  for  the  American  Farmer 

person  to  recover.^  Any  one  who  leaves  a  horse  unhitched 
and  unattended  in  a  city  street  takes  the  risk  of  what  the 
brute  may  do.^  Some  courts,  indeed,  decHne  to  go  to  this 
length,  but  still  hold  that  such  proof,  while  not  conclusive, 
is  sufficient  to  warrant  a  jury  in  finding  a  verdict  for  the 
injured  person.^  In  Kentucky,  however,  additional  proof 
of  negligence  is  required."*  If  an  animal  is  vicious  and  the 
owner  knows  it,  he  is  liable  in  some  jurisdictions  for  the 
injuries  it  does  while  running  away,  regardless  of  any  fault  or 
carelessness  on  his  part.^  The  mere  fact  that  a  team  of 
horses  runs  away  does  not  of  itself  alone  charge  the  owner 
with  negligence.^  To  leave  a  team  of  horses  standing  in  a 
private  lane  is  not  per  se  negligent.'''  Nor  is  it  negligence, 
per  se,  to  leave  unattended  in  a  public  street  a  gentle  team 
of  horses  with  a  fifty-six  pound  weight  attached  to  a  strap 
on  the  bridle  bit.^  A  farmer  is  not  negligent  in  leaving  his 
team  tied  to  a  hitching  rail  in  front  of  a  store  while  he  goes 
back  and  forth  unloading  his  produce ;  and  if,  owing  to  the 
antics  of  a  small  boy  circussing  on  the  hitching  rail,  the 
horses  break  loose,  run  away,  and  injure  people,  it  is 
the  boy's,  not  the  farmer's,  conduct  which  is  the  cause  of 
the  injury,  and  the  farmer  is  not  liable.^ 

»  Jones  V.  Belt,  8  Houst.  662. 

2  Stevenson  v.  U.  S.  Exp.  Co.,  221  Pa.  St.  69. 

3  Maxwell  v.  Durkin,  86  111.  App.  257;    Lane  v.  Atlantic  W'ka,  IH 
Mas3.  136 ;   McCambley  v.  Staten  Isl.  R.  R.,  32  App.  Div.  346. 

<  Dolfinger  v.   Fishback,    12  Bush,   474. 
*  Lynch  v.  Kineth,  36  Wash.  368. 

«  O'Brien  v.  Miller,  60  Conn.  214  ;  Creamer  v.  Mcllvain,  89  Md.  343; 
McGahie  v.  McClennen,  86  App.  Div.  263. 
'  Coller  V.  Knox,  222  Pa.  St.  362. 
«  Caughlin  v.  Campbell-Sell  Baking  Co.,  39  Colo.  148. 
»  Stephenson  v.  Corder,  71  Kan.  475. 


Live-stock  197 

§  131.     Fright  in  horses. 

It  is  a  general  rule  that  people  are  bound  to  take  precau- 
tions only  against  frightening  such  horses  as  are  ordinarily- 
gentle  and  well  broken. ^  If  a  horse  is  prone  to  take  fright 
at  anything  and  everything  which  does  not  usually  frighten 
horses,  the  owner  must  look  out  for  and  take  care  to  con- 
trol him,  or  suffer  the  consequences.^  An  object  in  a  high- 
way of  such  a  character  or  form  as  to  frighten  ordinarily 
gentle  horses  is  a  nuisance.^  A  person  driving  along  a 
highway  and  thrown  out  of  his  wagon  because  his  horse 
shied  at  the  reflection  cast  by  a  bright  sheet  of  metal  roof- 
ing used  by  a  railroad  company  to  cover  freight  piled  near 
by  has  no  case  against  the  corporation.*  And  a  woman 
injured  by  being  thrown  from  her  wagon  while  driving 
along  a  public  road  because  her  horse  took  fright  from  the 
rising  of  a  cow  that  had  been  lying  in  the  way  just  as  she 
attempted  to  drive  around  it,  has  no  cause  of  action  against 
the  owner  of  the  cow  on  the  ground  that  he  suffered  it 
unlawfully  to  be  at  large  in  the  highway.^  One  driving 
on  the  wrong  side  of  the  road  and  colliding  with  another 
coming  in  the  opposite  direction  is  hable  for  the  other's 
injuries  although  the  collision  would  not  have  occurred  if 
the  other's  horse  had  not  shied  just  as  they  met.^  The 
driver  of  an  automobile  meeting  a  frightened  horse  on  the 
highway  must  stop  until  the  horse  can  be  got  under  control 
and  brought  past  the  machine.^     The  driver  of  a  horse  on 

1  Card  V.  Ellsworth,  65  Me.  547 ;   Piollet  v.  Simmers,  106  Pa.  St.  95. 

2  Phila.,  W.  &  B.  R.  R.  v.  Stinger,  78  Pa.  St.  219  ;  Canter  v.  St.  Joseph, 
126  Mo.  App.  629.         =  Tinker  v.  N.  Y.,  Ont.  &  W.  R.  R.,  71  Hun,  431. 

*  Davis  V.  Penn.  R.  R.,  218  Pa.  St.  463. 

»  Marsh  v.  Koons,  78  Ohio  St.  68.  «  Neal  v.  Rendall,  98  Me.  69. 

'  Ind.  Sp'gs.  Co.  V.  Brown,  165  Ind.  465 ;  Christy  v.  Elliott,  216  lU.  31; 
Mclntyre  v.  Orner,  166  Ind.  57. 


198  Law  for  the  American  Farmer 

the  highway  has  no  rights  superior  to  those  of  a  bicycle 
rider.  ^ 

§  132.     Trespasses  of  animals. 

The  common  law  required  the  owner  of  domestic  live- 
stock to  keep  his  animals  upon  his  own  premises  or  answer 
in  damages  for  their  trespasses.^  And,  unless  modified 
by  statute,  this  rule  of  the  common  law  generally  prevails. 
For  example,  if  a  domestic  animal  breaks  and  enters  a 
person's  premises  and  injures  property  the  owner  of  the 
beast  is  liable  in  damages  whether  the  brute  is  or  is  not 
vicious.^  In  many,  probably  in  most  of  the  United  States, 
the  common  law  rule  has  either  not  been  adopted  or  else 
has  been  changed  by  statute  so  as  to  deny  to  landowners 
any  damages  for  the  trespasses  of  animals  upon  open  unin- 
closed  lands.^  The  technical  wrong  a  landowner  suffers 
when  another's  cattle  stray  upon  his  unfenced  land  is  re- 
garded as  too  slight  to  engage  the  attention  of  the  law.^ 
The  owner  of  cattle  is  not  liable  to  an  action  if  they  browse 
on  the  uninclosed  land  of  his  neighbor,  but  the  browsing 
is,  after  all,  merely  an  excusable  trespass;  it  is  not  a  matter 
of  right,  not  a  privilege,  only  an  immunity  from  legal  con- 
sequences of  a  trespass.^     Hence,  a  cattle  owner  is  liable 

1  Thompson  v.  Dodge,  58  Minn.  555. 

2  Taber  v.  Cruthers,  59  Hun,  .619. 
'  Morgan  v.  HudncU,  supra. 

*  Nuckolls  V.  Gaut,  12  Colo.  361 ;  Moore  v.  White,  45  Mo.  206 ;  De- 
laney  v.  Errickson,  10  Neb.  492 ;  Jones  v.  Witherspoon,  52  N.  C.  555 ; 
Cleveland,  C.  &  C.  R.  R.  v.  Elliott,  4  Ohio  St.  474. 

s  Kan.  City,  S.  &  M.  Ry.  v.  Kirksey,  48  Ark.  368. 

«  Knight  V.  Abert,  6  Pa.  St.  472  ;  St.  Louis,  I.  Mt.  &  S.  Ry.  v.  Ferguson, 
57  Ark.  16. 


Live-stock  199 

when  he  intentionally  drives  his  stock  upon  another's  open 
land.^  A  landowner,  too,  has  a  right  gently  and  carefully 
to  drive  away  stock  trespassing  upon  his  uninclosed  land, 
only  he  must  stop  when  the  boundary  line  is  once  crossed.^ 
An  owner  of  live-stock  has  a  right  to  drive  his  beasts  along 
the  public  highways,  and  if,  while  exercising  this  right  in  a 
careful  and  watchful  manner,  the  animals  without  his  fault 
escape  into  adjoining  lands  and  are  as  quickly  as  possible 
pursued  and  brought  back,  he  is  not  liable  for  the  damage 
they  do.^  This,  however,  will  not  relieve  him  from  lia- 
bility to  a  more  remote  landowner  if  after  escaping  from 
the  highway  the  animals  pass  over  the  adjoining  land  and 
injure  property  lying  beyond.'*  So  too,  if  horses  driven 
along  the  highway  take  fright  and  in  spite  of  the  utmost 
efforts  of  the  driver  to  control  them  enter  and  damage 
adjoining  land,  their  owner  is  not  liable  for  the  trespass.^ 
But  if  animals  are  unlawfully  on  the  highway  and  trespass 
on  adjoining  lands,  their  owner  is  liable  for  the  damage  they 
do  even  where  they  get  in  through  a  defective  or  insuffi- 
cient fence.® 

§  133.     Injuries  to  trespassing  animals. 

The  ancient  rule  that  a  landowner  owes  no  duty  to  tres- 
passers has  been  mitigated  to  some  extent  in  modern  times, 
especially  with   respect  of  irresponsible  beings.     If  the 

1  Healy  v.  Smith,  14  Wyo.  263 ;    Monroe  v.  Cannon,  24  Mont.  316. 

2  Richards  v.  Sanderson,  39  Colo.  270. 

3  Cool  V.  Crommet,  13  Me.  250;  Hartford  v.  Brady,  114  Mass.  466; 
Mills  V.  Stark,  4  N.  H.  512 ;    Rightmire  v.  Shepard,  12  N.  Y.  Supp.  800. 

<  McDonnell  v.  Pittsfield  &  N.  A.  R.  R.,  115  Mass.  564. 

8  Brown  v.  Collins,  53  N.  H.  442. 

«  Stackpole  v.  Healy,  16  Mass.  38 ;  Harrison  v.  Brown,  5  Wis.  27. 


200  Law  for  the  American  Farmer 

local  laws  permit  animals  to  run  at  large  —  and  frequently 
they  do  —  the  owner  of  premises  upon  which  there  are 
structures  or  excavations  obviously  dangerous  and  open 
to  wandering  animals  is  liable  in  damages  to  the  owner 
of  a  beast  which  strays  upon  such  premises  and  is  killed  or 
injured  in  consequence.^  If  one  wrongfully  opens  and 
carelessly  leaves  open  the  fence  of  an  inclosure  in  which 
a  high-bred  mare  is  kept,  and  the  animal  escapes  through 
the  opening  and  injures  itself  outside  by  getting  entangled 
in  a  barbed  wire  fence  upon  neighboring  premises,  he  is 
liable  in  damages  to  the  owner  of  the  mare.^  If  in  con- 
sequence of  a  landowner's  negligence  in  not  keeping  up  a 
division  fence  his  neighbor's  colt  escapes  from  its  pasture 
and  is  injured  while  at  large,  the  negligent  one  is  liable.' 
And  even  when  the  negligent  landowner  and  his  neighbor 
are  both  equally  bound  to  maintain  the  division  fence,  he 
is  liable  to  his  neighbor  if  the  latter's  cattle,  after  finding 
their  way  through  a  break  in  the  line  fence  to  his  land,  get 
out  of  his  premises  through  a  gate  he  negligently  left  open 
and  are  killed  upon  an  adjacent  railroad.**  But  a  land- 
owner upon  whose  lands  a  neighbor's  cattle  suffer  injury 
after  escaping  through  a  defective  line  fence  which  both 
proprietors  were  equally  bound  to  maintain,  is  not  liable 
to  the  owner  of  the  injured  beasts  where  their  hurts  were 
due  to  natural  unevenness  of  the  ground  or  to  eating  of  a 
growing  crop  not  inherently  dangerous  to  animals.^  A 
statute  which  prevents  the  owner  of  unfenced  land  from 

I  Hurd  V.  Lacy,  93  Ala.  427.  *  West  v.  Ward.  77  Iowa,  323. 

'  Wilder  v.  Stanley,  65  Vt.   145. 

*  Pitzner  v.  Shinnick,  41  Wis.  676. 

*  Fales  V.  Cole,  153  Mass.  322  ;   Fennell  v.  Seguin  St.  Ry.,  70  Tex.  670 


Live-stock  201 

recovering  damages  when  animals  trespass  upon  it  does 
not  make  him  Hable  for  the  death  of  an  animal  which  wan- 
ders upon  his  open  land  and  dies  from  drinking  a  poison- 
ous liquid  used  by  the  landowner  in  his  regular  business  ^ 

§  134.     Agisters. 

An  agister  is  a  person  who  for  hire  takes  the  live-stock 
of  others  to  graze  or  pasture  on  bis  own  land.^  He  is  not 
an  insurer  of  the  animals  he  takes  to  pasture,  but  is  only 
liable  for  negligence.^  He  is  bound  to  exercise  ordinary 
diligence  in  safeguarding  the  beasts  intrusted  to  his  care.* 
An  agister  is  under  an  obligation  to  keep  his  pastures  prop- 
erly fenced,  but  such  obligation  rests  upon  him  in  order 
to  prevent  the  animals  from  escaping  and  doing  harm  or 
trespassing  to  the  injury  of  others;  consequently  he  is 
not  required  to  fence  the  bank  of  a  navigable  stream.^ 
An  agister  who  takes  to  pasture  for  hire  a  healthy  horse 
and  puts  it  in  the  same  field  with  animals  having  a  con- 
tagious disease  with  which  the  horse  becomes  infected  and 
dies  is  liable  to  its  owner  for  its  value.^  An  agister  is 
generally  given  by  statute  a  lien  for  his  compensation  on 
the  animals  he  takes  to  pasture.^  Except  by  special  con- 
tract, such  a  lien  does  not  exist  unless  some  statute  gives 

1  Beinhorn  v.  Griswold,  27  Mont.  79. 

«  Williams  v.  Miller,  6  Pac.  Rep.  14. 

3  Bass  V.  Pierce,  16  Barb.  595 ;   Auld  v.  Travis,  5  Colo.  App.  535. 

*  Amngton  v.  Fleming,  117  Ga.  449. 

^Ibid. 

«  Costello  V.  Ten  Eyck,  86  Mich.  348. 

'  Fishell  V.  Morris,  57  Conn.  547 ;  Chapman  v.  First  Nat.  Bank,  98 
Ala.  528 ;  Sullivan  v.  Clifton,  55  N.  J.  L.  324 ;  Lambert  v.  Nicklass.  45 
W.  Va.  527. 


202  Law  for  the  American  Farmer 

\i}  The  lien  upon  an  animal,  which  the  statute  gives  an 
agister  or  one  who  feeds  and  cares  for  an  animal,  does  not 
cover  such  items  as  freight,  entrance  fees,  and  jockey's 
wages  in  horse  races. ^  The  lien  of  a  chattel  mortgage  upon 
a  team  of  horses  is  superior  to  the  lien  of  an  agister  for 
caring  for  and  feeding  the  animals  after  the  mortgage  was 
duly  filed.3  The  great  weight  of  authority,  it  has  been 
said,  is  to  this  efiect.^  The  legislature  may  constitutionally 
subject  to  police  regulation  the  keeping  and  pasturing  of 
stock. ^  It  may,  for  example,  make  it  unlawful  to  herd 
sheep  within  a  stated  distance  of  an  inhabited  dwelling, 
and  make  whosoever  shall  violate  the  regulation  liable  in 
damages.^  All  such  regulations  must,  however,  be  reason- 
able, otherwise  the  courts  will  invalidate  them  as  abuses 
of  power,'^ 

§  135.     The  progeny  of  domestic  animals. 

The  offspring  of  all  domestic  animals  belong  to  those 
who  own  the  dams  at  the  time  when  the  births  occur.* 
This  is  the  general  rule,  but,  of  course,  it  may  be  other- 
wise stipulated  by  contract.^  An  exception  to  this  gen- 
eral rule  is  the  case  where  the  dam  has  been  hired  out 
temporarily  for  a  definite  time  and  her  offspring  is  born 
during  the  term.     In  that  case,  unless  the  progeny  is  ex- 

»  Sharp  V.  Johnson,  38  Ore.  246.  *  Ibid. 

3  Erickson  v.  Lampi,  150  Mich.  92. 

*  Nat.  Bank  of  Commerce  v.  Jones,  18  Okla.  555. 
'  Reser  v.  Umatilla  Co.,  48  Ore.  326. 

•  Sifers  v.  Johnson,  7  Idaho,  798;   Walker  v.  Bacon,  11  id.  127. 

7  State  V.  Speyer,  67  Vt.  502. 

8  Arkansas  Val.  Land  &  Cattle  Co.  v.  Mann,  130  U.  S.  69. 

»  Leavitt  v.  Jones,  54  Vt.  423 ;   Hazelbaker  v.  Goodfellow,  64  111.  23& 


Live-stock  203 

pressly  reserved  to  the  owner  of  the  animal,  it  goes  to  the 
lessee.^  But  one  who  has  possession  of  a  mare  under  an 
agreement  to  pasture  her  for  her  use  as  long  as  the  owner 
cares  to  leave  her,  is  not  entitled  to  her  colt  foaled  while 
she  is  in  his  custody.^  There  is  much  seeming  conflict  in 
the  courts  over  the  question  whether  or  not  and  in  what 
circumstances,  if  any,  the  lien  of  a  chattel  mortgage  upon 
live-stock  will  attach  to  the  issue  of  the  animals.  This 
conflict  arises  out  of  opposing  views  as  to  the  effect  of  a 
chattel  mortgage  upon  the  title  to  the  mortgaged  prop- 
erty. In  some  states  it  operates  to  transfer  ownership 
subject  to  disfeasance  upon  payment  of  the  mortgage 
debt,  in  others  it  simply  constitutes  an  incumbrance  which 
leaves  the  title  where  it  was  before  the  mortgage  was  made. 
Keeping  in  mind  the  general  rule  mentioned  at  the  head  of 
this  section,  and  the  way  to  avoid  it  by  contract,  one  will 
understand  the  decisions  of  the  courts  that  differ  upon 
the  subject.  In  all  jurisdictions  where  a  chattel  mortgage 
operates  to  transfer  the  ownership  of  the  mortgaged  prop- 
erty, the  offspring  of  mortgaged  live-stock  born  after  the 
execution  of  the  mortgage  is  subject  to  the  lien  thereof, 
although  the  instrument  is  wholly  silent  upon  the  subject 
of  the  increase  of  the  animals.^  This  is  the  case  in 
Georgia,*  New  Jersey,^  Tennessee,^  and  Virginia  ^  in  the 

1  Hull  V.  Hull,  48  Conn.  250 ;   Stewart  v.  Ball,  33  Mo.  154 ;    Wood  v. 
Ash,    1   Owen,    139. 

2  Allen  V.  Allen,  2  Penr.  &  W.  166. 

'  Nor.  West.  Nat.  Bank  v.  Freeman,  171  U.  S.  620. 

*  Anderson  v.  Leverette,    116  Ga.  732. 

6  Cumberland  Bank  v.  Baker,  57  N.  J.  Eq.  569. 

«  Ellis  V.  Reaves,  94  Tenn.  210;   Latta  v.  Fowlkes,  94  Tenn.  219. 

»  Gannaway  v.  Tate,  98  Va.  789. 


204  Law  for  the  American  Farmer 

United  States,  and  in  New  Brunswick  ^  in  the  Dominion 
of  Canada.  In  Kansas,  when  animals  are  in  gestation  at 
the  time  a  chattel  mortgage  upon  them  is  made,  the  young 
afterwards  born  are  from  birth  subject  to  the  mortgage, 
even  though  it  does  not  mention  increase.^  In  the  same 
state  and  in  California  and  Nebraska  a  chattel  mortgage 
on  animals  and  their  increase  will  not  cover  after-begotten 
progeny,  when  the  dams  were  not  pregnant  at  the  time  the 
mortgage  was  made.^  In  certain  states,  a  chattel  mortgage 
on  live-stock,  providing  in  express  terms  that  it  shall  be  a 
lien  upon  the  issue  of  the  animals,  will  cover  the  offspring 
whether  the  dams  were  in  gestation  at  the  time  the  mort- 
gage was  made  or  did  not  conceive  until  afterwards.* 
This  is  so  in  lowa,^  Mississippi,^  and  Texas.''  In  a  state 
where  a  chattel  mortgage  does  not  transfer  title  to  the 
mortgaged  property,  if  a  mortgage  on  animals  does  not 
refer  to  their  increase  and  the  beasts  are  not  pregnant 
when  it  is  made,  the  progeny  will  not  be  subject  to  the 
mortgage.^  It  certainly  does  not  cover  the  offspring 
after  the  young  animals  have  ceased  to  run  with  their 
dams  and  have  grown  to  maturity.^  In  Vermont  this  is 
so  even  if  the  dams  were  pregnant  when  the  mortgage  was 
made.^''     In  Montana,  where  a  chattel  mortgage  does  not 

1  Nicholson  v.  Temple,  20  N.  Bruns.  248. 

2  Holt  V.  Lucas,  77  Kan.  710. 

'  Ibid.     Battle  Creek  Val.  Bank  v.  First  Nat.  Bank,  62  Neb.  825  ; 
Shoobert  v.  De  Motta,  112  Cal.  215. 

*  Cox  X.  Beck,  83  Fed.  Rep.  269. 

'  Hopkins  Fine  Stock  Co.  v.  Reid,  106  Iowa,  78. 

*  Packwood  v.  Atkinson  &  F.  Co.,  79  Miss.  646. 

'  First  Nat.  Bank  v.  Western  Mtg.  &  Invest.  Co.,  86  Tex.  636. 

*  Thorpe  Bros.  v.  Cowles,  55  Iowa,   408. 
»  Rogers  v.  Gage,   59  Mo.  App.   107. 

»  Enright  v.  Dodge,  64  Vt.  502 ;   Desany  v.  Thorp,  70  Vt.  31. 


Live-stock  205 

transfer  title  to  but  only  fastens  a  lien  upon  the  mortgaged 
property,  such  a  mortgage  on  cattle  including  pregnant 
cows  v/ill  not,  unless  it  mentions  increase,  cover  after-born 
calves.^  This  is  the  case  in  California,  where  it  has  been 
held  that  a  chattel  mortgage  on  a  flock  of  sheep  which 
does  not  expressly  mention  the  increase  will  cover  neither 
the  wool  clip  nor  the  lambs  born  after  the  mortgage  was 
executed,  even  when  the  ewes  were  in  gestation  at  the  time 
it  was  made.2 

'  Demers  v.  Graham,  14  L.  R.  A.  (N.  S.)  431. 
2  First  Nat.  Bank  v.  Erreca,  116  Cal.  81. 


CHAPTER  XVIII 

DOGS 

§§  136-140 

§  136.     Dogs  in  the  statutes. 

In  the  laws  and  before  the  courts  dogs  are  upon  a  some- 
what different  footing  from  other  animals.  They  are  on 
a  lower  plane  than  horses,  cattle,  sheep,  and  swine  and 
upon  a  higher  one  than  wild  beasts.  They  are  protected 
by  a  statute  forbidding  cruelty  to  animals,^  yet  a  statute 
respecting  beasts  of  burden  does  not  apply  to  them,^  and 
statutes  penalizing  the  killing  of  beasts  generally  are  con- 
sidered not  to  embrace  dogs.^  In  a  case  in  Maine  *  a 
defendant  indicted  for  killing  a  dog  under  a  statute  making 
it  a  crime  wilfully  or  maliciously  to  kill,  wound,  maim, 
disfigure,  or  poison  any  domestic  animal,  successfully  con- 
tended that  a  dog  was  not  a  domestic  animal  within  the 
meaning  of  the  statute.  But  Chief  Justice  Appleton  dis- 
sented from  the  judgment  of  the  court  and  argued  earnestly 

»  Wilcox  V.  state,  101  Ga.  563. 

«  Peo.  V.  Ct.  of  Spl.  Sessions,  4  Hun,  441. 

«  U.  S.  V.  Gideon,  1  Minn.  292 ;  State  v.  Phillips,  1  Shannon,  Cas.  34. 

*  State  V.  Harriman,  75  Me.  562. 

206 


Dogs  207 

that  a  dog  was  properly  classed  as  a  domestic  animal. 
"From  the  time  of  the  pyramids  to  the  present  day,"  said 
he,  "from  the  frozen  pole  to  the  torrid  zone,  wherever 
man  has  been  there  has  been  his  dog.  Cuvier  has  as- 
serted," he  continued,  "  that  the  dog  was  perhaps  necessary 
for  the  establishment  of  civil  society,  and  a  little  reflection 
will  convince  us  that  barbarous  nations  owe  much  of  their 
civilization  above  the  brute  to  the  possession  of  the  dog. 
He  is  the  friend  and  companion  of  his  master  —  accom- 
panying him  in  his  walks,  his  servant,  aiding  him  in  his 
hunting,  the  playmate  of  his  children,  —  an  inmate  of  his 
house,  protecting  it  against  all  assailants.  It  may  be  said 
that  he  was  jerce  naturce,  but  all  animals,  naturalists  say, 
were  originally  ferce  naturce,  but  have  been  reclaimed  by 
man,  as  horses,  sheep,  or  cattle;  but  however  tamed  they 
have  never,  like  the  dog,  become  domesticated  in  the  home, 
under  the  roof,  and  by  the  fireside  of  their  master.  The 
dog  was  a  part  of  the  agricultural  establishment  of  the 
Romans.  There  were  the  canes  villatici,  to  guard  the  villa 
of  the  Roman  senator,  the  canes  venatici,  accompanying  him 
in  his  hunting  expeditions,  and  the  ca7ies  pastorales,  by 
which  his  flocks  were  guarded.  Virgil  in  his  Georgics  has 
given  directions  as  to  their  management  and  education. 
To-day  in  many  countries  they  are  used  for  draught,  as  in 
France  and  Holland,  and  everywhere  are  regarded  as 
possessing  value  and  as  the  subject  of  traffic.  .  .  . 
Otway,  the  poet,  says  of  them  :  — 


They  are  honest  creatures 
And  ne'er  betray  their  masters,  never  fawn 
On  any  they  love  not.'  " 


208  Law  for  the  American  Farmer 

§  137.    Dogs  as  property. 

Large  sums  of  money  are  invested  in  dogs  and  they  are 
subjects  of  trade  and  traffic.^  In  many  ways  they  are 
put  to  useful  service,  and,  it  has  been  declared  by  high 
authority,  so  far  as  pertains  to  their  ownership  as  personal 
property,  they  possess  all  the  attributes  of  other  personal 
property.^  At  all  events,  at  common  law  and  generally 
in  the  United  States,  dogs  are  so  far  recognized  as  prop- 
erty that  suits  may  be  maintained  by  those  who  own 
them  if  they  are  converted  or  injured.^  The  owner  of  a 
dog  may  maintain  trover  for  its  wrongful  conversion,^ 
and  an  action  against  any  person  who  wantonly  or  neg- 
ligently kills  or  injures  the  brute.^  A  statute  of  Delaware  ^ 
requires  dogs  to  be  registered  and  it  is  held  in  that  state 
that  one  who  unlawfully  kills  a  registered  dog  is  liable  to 
its  owner  for  its  value.^  In  many  states  any  one  who 
steals  a  dog  is  guilty  of  larceny.  This  is  the  case  in  lowa,'^ 
Arkansas,^  and  New  York.^°  "  When  we  call  to  mind,"  said 
the  New  York  Court  of  Appeals,"  "the  small  spaniel  that 
saved  the  life  of  William  of  Orange  ^^  and  thus  probably 

*  MuUaly  v.  Peo.,  86  N.  Y.  365.  s  Ibid. 
3  Sentell  v.  New  Orleans  &  C.  R.  R.,  166  U.  S.  698. 

*  Graham  v.  Smith,  100  Ga.  434. 

'  Nehr  v.  State,  35  Neb.  638 ;  Columbus  R.  R.  v.  Woolfolk,  128  Ga. 
031 ;  Heiligmann  v.  Rose.  81  Tex.  222  ;  Citizens  R.  T.  Co.  v.  Dew,  100 
Tenn.  317. 

«  16  Del.  L.  Chap.  48,  p.  58. 

'  Harrington  v.   Hall.   63  Atl.   875. 

*  Hamby  v.   Samson,    105   Iowa,    112. 
»  State  V.  Soward,  83  Ark.  264. 

1°  Mullaly  V.  Peo.,  supra. 

»  Ibid. 

>'  Vide,  Motley's  Rise  of  th.>  Dutch  Republic,  Vol.  2,  p.  398. 


Dogs  209 

changed  the  current  of  modern  history,  and  the  faithfuJ 
St.  Bernards  which,  after  a  storm  has  swept  over  the  crests 
and  sides  of  the  Alps,  start  out  in  search  of  lost  travelers, 
the  claim  that  the  nature  of  a  dog  is  essentially  base  and 
that  he  should  be  left  as  a  prey  to  every  vagabond  who 
chooses  to  steal  him  will  not  now  receive  ready  assent." 
But  while  dogs  are  property  in  every  sense  of  the  word  they 
are  not  such  in  the  same  high  degree  as  other  domestic 
animals,  such  as  horses,  cattle,  sheep,  and  swine,  nor  are 
they  entitled  to  the  same  legal  protection  and  regard  in 
the  esteem  of  many  courts  and  jurists.^  There  is  no  prop- 
erty in  dogs  so  far  as  the  police  power  of  the  state  exer- 
cised through  a  humane  society  is  concerned.-  In  regard 
to  the  ownership  of  live  animals,  the  law  has  long  made  a 
distinction  between  dogs  and  cats  and  other  domestic 
quadrupeds  growing  out  of  the  nature  of  the  creatures  and 
the  purposes  for  which  they  are  kept.  Beasts  which  have 
been  thoroughly  tamed  and  are  used  for  burden,  hus- 
bandry, or  food,  such  as  horses,  cattle,  and  sheep,  are  as 
truly  property  of  intrinsic  value  and  entitled  to  the  same 
protection  as  any  kind  of  goods.  But  dogs  and  cats,  even 
in  a  state  of  domestication,  never  wholly  lose  their  wild 
nature  and  destructive  instincts,  and  are  kept  either  for 
uses  which  depend  on  retaining  and  calling  into  action 
those  very  natures  and  instincts  or  else  for  the  mere  whim 
or  pleasure  of  the  owner,  and,  therefore,  although  a  man 
might  have  such  a  right  of  property  in  a  dog  as  to  main- 
tain trespass  or  trover  for  unlawfully  taking  or  destroying 

»  Sentel!  v.  New  Orleans  &  C.  R.  R.,  supra:  Carthage  v.  Rhodes,  101 
Mo.  175 ;  Chunot  v.  Larson,  43  Wis.  536 ;  Cooper's  case,  3  Tex.  App. 
489.  =  Fox  V.  Mohawk  &  H.  R.  Humane  Soc,  165  N.  Y.  517. 

p 


210  Law  for  the  American  Farmer 

it,  yet  he  was  held,  in  the  phrase  of  the  books,  to  have  "no 
absolute  or  valuable  property"  in  a  dog  which  could  be  the 
subject  of  a  prosecution  for  larceny  at  common  law.^ 

§  138.     Liability  for  injuries  done  by  dogs. 

If  an  animal  is  disposed  to  attack  mankind  and  its 
keeper  has  notice  of  its  dangerous  propensity,  the  public 
safety  demands  that  if  he  keeps  the  animal  at  all  he  shall 
keep  him  secure.  There  is  no  necessity  for  keeping  ex- 
ceptionally vicious  individuals  of  a  species  of  animals  nat- 
urally peaceable  which  justifies  keeping  them  on  any  other 
terms.  After  notice  the  keeper  of  such  an  animal  is  re- 
sponsible for  all  injuries  due  to  its  attacks,  and  the  fact  that 
he  endeavors  so  to  keep  the  brute  as  to  prevent  the  mis- 
chief will  not  protect  him  if  he  fails.  The  gist  of  the  action 
is  not  the  manner  of  keeping  the  vicious  animal  but  the 
keeping  of  it  at  all  with  knowledge  of  its  viciousness.^ 
Thus,  one  who  keeps  a  ferocious  watch  dog,  knowing  the 
brute  to  be  vicious  and  dangerous,  must  at  his  peril  keep 
it  safe  from  doing  hurt,  for,  though  he  uses  diligence,  if  the 
beast  escapes  and  injures  some  one,  he  is  liable  in  dam- 
ages.' One  who  keeps  a  dog  to  protect  his  premises  from 
trespassers  is  by  that  very  fact  charged  with  knowledge 
that  it  is  fierce  and  dangerous.'*  An  owner  who  grossly 
neglects  to  learn  the  habits  of  his  animals  is  charged  with 
notice  of  their  viciousness  when  they  are  habitually  vi- 
cious.^    If  a  dog  is  notoriously  vicious  and  has  attacked 

»  Blair  v.   Forehand,    100  Mass.   136. 

*  Hammond  v.  Melton,  42  111.  App.  186.  , 
'  Montgomery  v.  Koestsr,  35  La.  Ann.  1091. 

*  Brice  v.  Bauer,  108  N.  Y.  428. 

6  Knowles  v.  Mulder,  74  Mich.  202. 


Dogs  211 

and  bitten  several  people,  its  general  bad  reputation  may 
be  proved  to  impute  knowledge  to  its  owner.^  The  habit 
of  a  dog  to  attack  passing  teams  may  be  proved  in  case  of 
a  dispute  as  to  whether  or  not  he  did  attack  a  particular 
team  passing  on  a  certain  occasion.^  One  may  be  charged 
with  a  liabihty  as  the  keeper  or  harborer  of  a  dog,  although 
not  the  owner  of  the  animal;  as,  for  examples,  when  it  is 
kept  on  his  premises  by  his  minor  child,'  or  his  daughter, 
and  used  as  a  watch  dog,^  or  his  adult  son  for  a  friend,* 
his  lodger,^  his  servant,^  his  servant's  minor  son,^  or  his 
partner.^  One  is  also  held  to  be  the  keeper  or  harborer  of 
a  dog  which  he  has  given  away  while  it  remains  in  his 
custody  before  the  new  owner  takes  it,^°  and  as  long  as  he 
permits  it  to  stay  on  his  premises."  It  is  some  evidence 
that  a  man  owns  a  dog  when  his  name  is  inscribed  on  the 
dog's  collar.^2 

§  139.     The  lawful  killing  of  dogs. 

Laws  which  provide  for  the  summary  destruction  of 
dogs  running  at  large  are  held  to  be  valid  exercises  of  the 

»  Fake  v.  Addicks,  45  Minn.  37 ;  Robinson  v.  Marino,  3  Wash.  434. 

2  Broderick  v.  Higginson,  169  Mass.  482. 

3  Cummings  v.  ROey,  52  N.  H.  368 ;  Plummer  v.  Ricker,  71  Vt.  114. 
^  Duval  V.  Barnaby,  75  App.  Div.  154. 

5  Wood  V.  Vaughan,  28  N.  Bruns.  472. 
*  Hahn  v.  Kordula,  5  Kan.  App.  142. 

'  Chicago  &  A.  R.  R.  v.  Kuckkuck,  197  111.  308 ;   Jacobsmeyer  v. 
Poggemoeller,  47  Mo.  App.  560. 

8  Snyder  v.  Patterson,  161  Pa.  St.  98. 
'  Grant  v.  Ricker,  74  Me.  487. 
"  Marsel  v.  Bowman,  62  Iowa,  67. 
»  Mitchell  V.  Chase,  87  Me.  172. 
12  Ingraham  v.  Chapman,   177  Mass.   123. 


212  Law  for  the  American  Farmer 

police  power  of  the  state, ^ — especially  those  relating  to 
unmuzzled  dogs.^  But  a  dog  is  not  running  at  large  unless 
he  is  off  his  master's  premises  with  no  person  having  an 
interest  in  it  near  at  hand.^  If  a  dog  is  going  along  the 
streets  by  the  side  of  his  master  or  his  master's  servant,  or 
near  enough  to  be  controlled  and  kept  out  of  mischief, 
although  not  held  in  leash,  but  loose,  he  is  not  running  at 
large;  ^  neither  is  a  dog  at  play  with  its  owner's  child  on 
its  owner's  grounds.^  Nor  is  a  hound  in  chase  running  at 
large,  though  out  of  its  master's  sight  and  hearing,  when 
near  to  a  companion  of  its  master.^  A  dog  cannot  law- 
fully be  killed  for  a  mere  trespass.^  And  a  mere  notice 
to  the  owner  of  a  dog  to  keep  the  beast  at  home  will  not 
justify  kilhng  it  while  trespassing  on  the  slayer's  premises.^ 
A  dog  frightened  and  chased  from  the  highway  by  boys 
cannot  be  justifiably  killed  by  one  upon  whose  premises  it 
seeks  refuge  upon  a  bare  suspicion  that  it  had  in  the  past 
destroyed  eggs  and  hens'  nests.^  And  merely  because  a 
valuable  dog  has  chased  cats  into  trees,  barked  at  night 
about  a  man's  house,  tracked  over  his  freshly  painted 
porch,  and  even  invaded  his  hen  house,  where  he  did  no 
harm  beyond  the  possible  breaking  of  a  single  egg,  will  not 
justify  the  man  in  killing  him,  especially  where  he  has 
never  complained  to  the  dog's  owner.^''    A  man  is  not  justi- 

»  Hagerstown  v.  Witmer,   86   Md.  293. 

*  Walker  v.  Towle,  156  Ind.  639.  '  Nehr  v.  State,  supra. 

*  Com.  V.  Dow,  51  Mass.  382. 

'  McAneany  v.  Jewett,  92  Mass.  151. 

•  Wright  V.  Clark,  50  Vt.   130. 

'  Marshall  v.  Blackshire,  44  Iowa,  475. 

•  Hodges  V.  Causoy,  77  Miss.  353. 

•Brent  v.   Kimball,   60  111.  211.      »«  Bowers  j>.  Horen,  93  Mich.  420. 


Dogs  213 

fied  in  wantonly  and  maliciously  killing  a  trespassing  dog 
merely  because  he  suspects  it  is  about  to  injure  his  prop- 
erty when  the  animal  is  not  doing  any  actual  damage.* 
A  dog  may  not  lawfully  be  killed  by  an  owner  of  cattle  for 
chasing  the  animals  off  its  master's  land  where  they  were 
trespassing.^  A  man,  however,  may  justifiably  kill  a  dog 
caught  committing  depredations  on  his  property.  He  may, 
for  instance,  lawfully  kill  a  dog  trapped  while  entering  a 
well-fenced  garden  a  second  time  after  having  stolen  a  fish 
from  the  wall  of  the  dwelling,^  or  a  dog  caught  at  night  in 
a  smoke-house  eating  bacon.'*  The  right  given  by  the 
Connecticut  statute  to  kill  a  dog  found  doing  or  attempt- 
ing to  do  mischief,  when  not  under  any  one's  care,  justifies 
the  killing  of  a  dog  destroying  young  and  tender  garden 
plants  regardless  of  the  relative  values  of  the  beast  and  the 
plants.^  Hounds  running  through  and  damaging  a  field 
of  wheat,  when  they  cannot  be  kept  out,  may  lawfully  be 
shot  by  the  farmer  when  they  are  trespassing.^  A  vicious 
and  dangerous  dog  in  the  habit  of  attacking  and  biting 
people  is  a  nuisance,  and  a  person  attacked  by  it  is  justified 
in  summarily  killing  it.''  But  if  a  dog  is  not  vicious  or 
dangerous,  although  in  the  habit  of  dashing  out  and  barking 
at  people,  his  killing  is  not  justifiable.^  A  dog  which  habit- 
ually lurks  about  a  house,  barking  and  howling  day  and 

'  Ten  Hopen  v.  Walker,  96  Mich.  236. 

2  Spray  v.  Ammerman,  66  111.  309.      '  King  v.  Kline,  6  Pa.  St.  318. 
«  Dunning  v.  Bird,  24  111.  App.  270. 
'  Simmonds  v.  Holmes,  61  Conn.  1. 
«  Lipe  V.  Blackwelder,  25  111.  App.  119. 

^  Putnam  v.  Payne,  13  Johns.  312;    Dunlap  v.  Snyder,  17  Barb.  661, 
Nehr  v.  State,  supra. 

*  Jacquay  v.  Hartzell,  1  Ind.  App.  600. 


214  Law  for  the  American  Farmer 

night,  disturbing  the  peace  and  quietude  of  its  inmates, 
may  lawfully  be  killed  by  the  annoyed  householder  when 
that  is  the  only  way  to  suppress  the  nuisance. ^  And  if 
dogs  congregate  at  night  about  a  man's  premises  and  bark, 
quarrel,  and  fight,  until  the  nuisance  becomes  intolerable, 
he  may  kill  the  brutes  with  a  shotgun.^  One  is  not  justi- 
fied in  killing  an  unlicensed  dog  on  the  ground  that  it  is  a 
public  nuisance,  but  to  warrant  his  doing  so  he  must  have 
suffered  by  it  some  injury  personal  to  himself  and  not 
common  to  the  public.^ 

§  140.     Sheep-killing  dogs. 

The  law  does  not  regard  sheep-killing  dogs  worthy  of 
much  consideration.  In  fact,  it  looks  upon  them  with  posi- 
tive disfavor.  A  statute  which  requires  the  summary 
slaughter  of  sheep-killing  dogs  is  not  unconstitutional  on 
the  ground  that  it  deprives  their  owners  of  property  with- 
out due  process  of  law.^  A  tax  laid  upon  the  owners  of 
dogs  to  indemnify  the  owners  of  sheep  killed  by  dogs  is 
constitutional.^  A  statute  making  owners  of  dogs  liable 
for  the  value  of  the  sheep  they  kill  is  valid. ^  It  is  no  de- 
fense to  a  householder  sued  for  damages  on  account  of 
sheep  killed  by  a  dog,  under  a  statute  making  the  keeper 
of  a  dog  hable  in  such  circumstances,  that  the  offending 
brute  belonged  to  his  daughter  when  she  lived  in  his  house 
and  kept  the  dog  there  with  his  consent.'^     A  dog  caught 

1  Brill  V.  Flagler,  23  Wend.  354. 

2  Hubbard  v.  Preston,  90  Mich.  221. 
'  Chapman  v.  Dccrow,  93  Me.  378. 

*  Holmes  v.  Murray,  207  Mo.  413. 

6  McGlone  v.  Womack,  17  L.  R.  A.  (N.  S.)  855. 

*  Holmes  v.  Murray,  supra.  ''  Ibid. 


Dogs  215 

worrying  and  killing  sheep  may  be  killed  at  once  as  a 
nuisance.^  But  to  justify  its  slaughter  the  dog  must  be 
known  to  have  actually  worried  sheep  —  a  mere  suspicion 
or  belief  that  it  has  done  so  is  not  sufficient.^  And  merely 
chasing  and  barking  at  sheep,  without  attacking  or  biting 
them,  is  not  "worrying."  ^  A  sheep  owner  who  detects  a 
dog  worrying  his  lambs,  and  a  few  days  later  discovers  him 
prowling  about  the  premises  with  another  dog,  unattended 
by  any  person,  need  not  wait  for  him  to  attack  the  lambs 
again  before  shooting  him."*  When  sheep  are  worried  or 
killed  by  two  dogs  acting  in  concert,  belonging  to  different 
persons,  the  owner  of  each  dog  is  liable  for  the  entire  damage 
done  by  both  animals,  under  a  statute  imposing  upon  the 
owner  or  keeper  of  a  dog  that  injures  sheep  a  liability  for 
"all  damage  so  done."  ^ 

'  Dunlap  V.  Snyder,  supra;   Parrott  v.  Hartsfield,  20  N.  C.  110. 

2  Johnson  v.  McConnell,  80  Cal.  545. 

3  Campbell  v.  Brown,  1  Grant,  Cas.  82  ;    Marshall  v.  Blackshire,  supra, 
<  Throne  v.  Mead,   122  Mich.  273. 

'  Nelson  v.  Nugent,  106  Wis.  477. 


CHAPTER  XIX 

CONTRACTS 

§§  141-144 

§  141.     The  nature  of  a  contract. 

The  usual  and  most  frequently  employed  means  of 
acquiring  property  is  by  contract,  and  one  of  the  most 
valuable  and  sacred  rights  is  the  right  to  make  and  enforce 
contracts.^  Contracts  and  compacts  have  been  made 
between  men,  tribes,  and  nations  during  all  time  from  the 
earliest  dawn  of  history,  and  the  right  and  liberty  of  con- 
tract is  one  of  the  inalienable  rights  of  man.^  The  liberty 
of  contract  is  fully  secured  and  protected  by  constitutions 
in  the  United  States  and  may  be  restrained  only  so  far  as  it 
is  necessary  for  the  common  welfare  and  the  equal  pro- 
tection and  benefit  of  the  people  at  large.^  A  contract  has 
been  defined  as  an  agreement  upon  a  sufficient  considera- 
tion to  do  or  not  do  a  particular  thing ;  ■*  also,  as  the  mu- 
tual assent  of  two  or  more  persons  competent  to  make 
an  agreement,  founded  upOn  a  sufficient  and  legal  motive, 
inducement,  or  consideration,  to  do  some  legal  act  or  to 

1  Palmer  v.  Tingle,  55  Ohio  St.  423. 

2  Ibid. 
»  Ibid. 

*  Blackstone. 

216 


Contracts  217 

omit  doing  something  not  by  law  commanded  to  be  done ;  ^ 
and,  again,  as  a  deliberate  or  voluntary  agreement  between 
competent  persons  upon  a  legal  consideration  to  do  or  not 
do  some  act.^  It  is  spoken  of  by  the  Supreme  Court  of 
the  United  States  as  an  agreement  by  two  or  more  persons 
to  do  or  refrain  from  doing  certain  acts  or  some  particular 
thing  ^  and  as  a  transaction  in  which  each  party  comes 
under  an  obligation  to  the  other  and  each  acquires  a  right 
to  whatever  the  other  promised.^  A  contract  is  a  compact 
either  executory  or  executed.^  And  it  is  executory  when 
the  thing  agreed  upon  is  to  be  done  or  omitted  in  the 
future.^  That  is,  a  contract  is  executory  so  long  as  any- 
thing remains  to  be  done  in  order  to  perform  itJ  All  con- 
tracts, covenants,  and  promises  which  give  one  a  right  to 
recover  of  another  by  suit  any  personal  property  or  sum 
of  money  are  embraced  by  the  legal  phrase  *'choses-in- 
action."  ^ 

§  142.     Classification  of  contracts. 

For  the  purposes  of  remedies  in  courts  of  justice,  con- 
tracts are  express,  implied,  or  constructive.^  Contracts 
are  express  when  voluntarily  made  by  the  contracting 
parties ;  ^°  they  are  such  as  are  openly  uttered  or  stated  in 

1  Chitty. 

2  Story. 

'  Sturges  V.  Crowninshield,  4  Wheat.  122  ;  Green  v.  Biddle,  8  Wheat.  1. 

*  Dartmouth  Coll.  Case,  4  Wheat.  518. 
'  Fletcher  v.  Peck,  6  Cranch,  87. 

*  Farrington  v.  Tennessee,  95  U.  S.  679. 

■'  Fox  V.  Kitton,  19  111.  519;   Watkins  v.  Nugen,  118  Ga.  372. 

8  Sheldon  v.  Sill,  8  How.  U.  S.  441. 

9  Wickham  v.  Weil,  17  N.  Y.  Supp.  518. 

10  Grevall  v.  Whiteman,  32  Misc.  R.  279. 


218  Law  for  the  American  Farmer 

terms. ^  An  implied  contract  is  such  as  reason  and  justice 
dictate  and  the  law  presumes  every  man  has  promised  to 
perform,  and,  upon  this  presumption,  makes  him  answer- 
able to  those  who  suffer  from  his  failure  to  perform. ^ 
Thus,  if  it  is  the  duty  of  a  person  to  pay  money,  the  law 
will  imply  his  promise  to  pay  it.^  The  law  never  imphes  a 
promise,  however,  unless  a  duty  creates  an  obligation.^  It 
never  implies  a  promise  against  duty  or  to  do  an  act  con- 
trary to  law.^  The  distinction  between  an  express  con- 
tract and  an  implied  one  is  that  the  former  is  shown  by 
the  actual  agreement  made  by  the  parties,  the  latter  by  the 
circumstances  and  dealings  of  the  parties  in  respect  of  the 
subject  matter.*^  The  difference  is  one  of  the  proof  to 
establish  the  contract.'^  The  express  contract  is  stated 
clearly  in  writing  or  orally,  and  the  implied  contract  is 
inferred  or  deduced.^  An  implied  contract  cannot  exist 
when  there  is  an  express  one  on  the  subject ;  *  a  promise  is 
never  implied  when  there  is  an  express  unabrogated  con- 
tract between  the  parties  relating  to  the  same  matter. i" 
In  order  that  there  may  be  either  an  express  or  an  implied 
contract,  the  parties  to  it  must  have  such  relations  with 
each  other  in  regard  to  the  subject  matter  that  they  agree 

»  Linn  v.  Ross,  10  Ohio,  412 ;   Thompson  v.  Woodruff,  47  Tenn.  401. 
»  Ogden  V.  Saunders,  12  Wheat.  213. 

3  Brainard  v.  Hubbard,  12  Wall.  1 ;  Bailey  v.  N.  Y.  C.  &  H.  R.  R.  R., 
22  id.  604. 

*  Gary  v.  Curtis,  3  How.  U.  S.  236 ;   Curtis  v.  Fiedler,  2  Black,  461. 
'  Ihid. 

•  McCarthy  v.  N.  Y.  City,  96  N.  Y.  1. 

'  Columbus,  H.  V.  &  T.  R.  R.  v.  Gaffney,  65  Ohio  St.  104. 
8  Pence  v.  Bookman,  11  Ind.  App    263. 
»  Musgrove  v.  Jackson  City,  59  Miss.  390. 
lo  Hawkins  v.  U.  S.,  96  U.  S.  689. 


Contracts  219 

about  something  by  mutual  interaction.'  Both  express 
and  implied  contracts  rest  upon  the  intentions  of  the  con- 
tracting parties.  The  difference  between  them  is  simply 
in  the  character  of  the  evidence  which  goes  to  prove  them  ; 
but  a  constructive  contract  is  one  implied  by  law  without 
any  intention  on  the  part  of  the  parties  to  it  and  sometimes 
even  contrary  to  their  actual  intentions.^ 

§  143.     The  essentials  of  a  contract. 

In  every  valid  contract  there  are  certain  indispensable 
elements.  There  must  be  parties  legally  competent  to 
make  the  contract,  and  they  must  act  freely,  mutually, 
understandingly,  and  concerning  the  same  subject.  There 
must  be  an  inducement  given  and  received,  termed  a  con- 
sideration. There  is  no  valid  contract  without  a  meeting 
of  the  minds  of  the  contracting  persons ;  that  is,  without  an 
offer  on  one  side  and  an  acceptance  on  the  other  and  a 
mutual  willingness  to  agree  on  that  basis.^  To  effect  a 
legal  contract  the  minds  of  the  contracting  persons  must 
agree ;  both  must  intend  and  mean  the  same  thing  in  the 
same  sense.^  A  contract  cannot  exist  unless  the  minds  of 
the  parties  agree  upon  its  subject  and  they  make  it  volun- 
tarily.^ When  the  terms  of  a  contract  are  misunderstood, 
neither  party  is  bound.''  It  is  an  essential  of  every  valid 
contract  that  each  contracting  person  have  physical  and 

1  Woods  V.  Ayres,  39  Mich.  345. 

2  Bliss  V.  Hoyt's  Est.,  70  Vt.  534. 

'  Davis  V.  Seymour,  59  Conn.  531. 

*  Lewis  V.  Wells,  85  Fed.  R.  896 ;  Taylor  v.  Von  Schraeder,  107  Mo. 
206. 

6  Gorring  v.  Reed,  23  Utah,   120. 
«  First  Nat.  Bk.  v.  Hall,  101  U.  S.  43. 


220  Law  for  the  American  Farmer 

moral  power  to  consent  to  its  terms  and  that  such  power 
be  freely  and  deliberately  exercised.^  But  then,  a  contract 
made  by  one  too  drunk  to  know  what  he  was  doing  will  be 
made  good  if  he  ratifies  it  when  sober.^  If  a  person  makes 
a  contract  when  so  intoxicated  that  his  reason  is  dethroned, 
he  may  repudiate  it,  but  if  he  is  only  slightly  intoxicated 
and  merely  indiscreet  or  foolish,  it  will  bind  him.^  A  con- 
tract is  sufficient  if  signed  by  one  person  and  accepted  and 
performed  by  the  other.^  But  if  both  contracting  parties 
intend  that  each  shall  sign  a  writing  to  prove  the  contract 
they  make,  the  contract  is  not  complete  until  both  have 
signed  such  writing.^  A  signature  to  a  contract  by  the 
signer  making  his  mark  is  good."  A  contract  for  the  sale 
and  purchase  of  land  binds  neither  party  to  it  unless  it  is 
obligatory  upon  both.''  This  indeed  is  true  of  all  con- 
tracts ;  to  be  binding  upon  any  party,  they  must  be  binding 
upon  all  parties.  Every  contract  must  be  based  upon  a 
consideration;^  none  is  ever  binding  without  one.^  A 
valuable  consideration  is  an  essential  element.^"  Without 
a  consideration  there  can  be  no  contract  express  or  im- 
plied." Every  promise  must  be  supported  by  some  con- 
sideration; ^^  a  gratuitous  promise  cannot  be  enforced.  ^^ 

»  Leep  V.  St.  Louis,  I.  M.  &  S.  R.  R.,  58  Ark.  407. 

«  Carpenter  v.  Rodgers,  61   Mich.  384. 

3  Cameron-Barkley  Co.  v.  Thornton  Lt.  &  P.  Co.,  138  N.  C.  365. 

•  Muscatine  Water  Co.  v.  Muscatine  Lum.  Co.,  85  Iowa,  112. 

'  Ambler  v.  Whipple,  20  Wall.  546.       «  Bates  v.  Harte,  124  Ala.  427. 

'  Atlee  V.  Bartholomew,  69  Wis.  43. 

»  Mills  Co.  Nat.  Bk.  v.  Perry,  72  Iowa,  15. 

«  D.  Simmons  Lum.  Co.  v.  Corey,  140  N.  C.  462. 
•"  Wheeler  v.  Glasgow,  97  Ala.  700.         "  Da\-is  v.  Seymour,  supra. 
"  Stewart  v.  Jerome,  71  Mich.  201. 
»»  Presbyt.  Church  v.  Cooper,  112  N.  Y.  517. 


Contracts  221 

But  a  valuable  consideration  however  small,  paid  or  prom- 
ised in  good  faith  without  fraud,  is  sufficient  to  sustain  a 
contract.^ 

§  144.     Construction  and  interpretation  of  contracts. 

The  cardinal  rule  for  construing  all  contracts  is  to  as- 
certain and  give  effect  to  the  intentions  of  those  who  make 
them  if  these  are  not  contrary  to  law.^  The  manifest  in- 
tention of  the  parties  controls  careless  expressions  and 
inapt  language  employed.^  And  when  contracts  are  ex- 
pressed in  dubious  words  or  ambiguous  terms,  courts  will 
seek  to  learn  and  give  effect  to  the  intentions  of  the  con- 
tracting parties.^  But  if  a  contract  is  perfectly  plain  and 
unambiguous,  the  fact  that  the  parties  to  it  intended  to 
express  something  different  will  not  change  it.^  All  oral 
agreements  and  negotiations  of  the  contracting  persons 
merge  in  the  written  contract  they  finally  make  and  may  not 
be  proved  for  the  purpose  of  varying  it  in  any  respect;^  it 
may  not  be  contradicted  or  changed  by  proof  of  previous 
declarations  or  conduct;^  it  may  not  be  altered  by  oral 

1  Lawrence  v.  McCalmont,  2  How.  U.  S.  426. 

-  Bradley  v.  Wash.  A.  &  G.  Steam  Packet  Co.,  13  Pet.  89  ;  Chesapeake 
&  O.  Canal  Co.  v.  Hill,  15  WaU.  94 ;  N.  W.  Mut.  Life  Ins.  Co.  v.  Gridley, 
100  U.  S.  614. 

3  Rockefellow  v.  Merritt,  76  Fed.  R.  909 ;  Monmouth  Park  Asso.  v. 
Wallis  Iron  W'ks,  55  N.  J.  L.  132. 

*  Atchison,  T.  &  St.  F.  R.  R.  v.  Chicago  &  W.  Ind.  R.  R.,  162  111.  632 ; 
Kauffman  v.  Raeder,  108  Fed.  R.  171. 

6  Cold  Blast  Transp.  Co.  v.  Kan.  City  Bolt  &  Nut  Co.,  114  Fed.  R. 
77. 

6  Van  Ness  v.  Washington,  4  Pet.  232 ;  Union  Mut.  Life  Ins.  Co.  v. 
Mowry,  96  U.  S.  544. 

7  De  Witt  V.  Berry,  134  U.  S.  30G. 


222  Law  for  the  American  Farmer 

testimony.^  The  language  of  a  contract  reflects  its  sub- 
ject.2  The  words  of  a  contract  referring  to  the  ordinary- 
transactions  of  life  must  be  given  their  usual  and  popular 
meaning.^  In  a  written  contract  the  words  and  not  the 
punctuation  control  the  meaning,^  but  if  the  meaning  is 
obscure,  the  punctuation  may  be  considered  as  an  aid  to  its 
elucidation.^  In  construing  a  contract  it  must  be  read  as 
a  whole,^  and  every  part  of  it  must  be  accorded  equal 
weight.^  The  circumstances  amid  which  a  contract  was 
made  are  always  considered  in  interpreting  its  meaning  if 
that  is  not  perfectly  clear.*  The  construction  of  a  contract 
to  be  adopted,  if  more  than  one  offers,  is  that  which  in  the 
circumstances  of  the  case  ascribes  to  the  parties  the  most 
reasonable,  probable,  and  natural  conduct ;  ^  and  a  contract 
open  to  two  interpretations,  one  making  it  lawful  and  the 
other  unlawful,  must  be  so  construed  as  to  make  it  lawful,^" 
because  it  is  presumed  that  the  parties  did  not  intend 
to  make  an  illegal  agreement  or  to  do  wrong. ^^  It  is 
also  the  general  rule  that  if  a  contract  is  open  to  two 
constructions,  one  in  harmony  and  the  other  in  conflict 

»  Forsythe  v.  Kimball,  91  U.  S.  291 ;   Richardson  v.  Hardwick,  100  id. 
252. 

»  Richmond  Min.  Co.  v.  Eureka  Consol.  Min.  Co.,  103  U.  S.  839. 

'  Moran  v.  Prather,  23  Wall.  492. 

*  Holmes  v.  Phenix  Ins.  Co.,  98  Fed.  R.  240. 

«  Joy  V.  St.  Louis,  138  U.  S.  1. 

«  U.  S.  V.  Bostwick,  94  U.  S.  53. 

'  Arbuckle  v.  Kirkpatrick,  98  Tenn.  221 ;   McKay  v.  Barnctt,  21  Utah 
239;    German  Fire  Ins.  Co.  v.  Roost,  55  Ohio  St.  581. 

«  Romy  V.  Olds,  21  L.  R.  A.  645 ;  Kauffman  v.  Raeder,  supra;  Sattler 
V.  Hallock,  160  N.  Y.  291. 

»  Bell  V.  Bruen,  1  How.  U.  S.  169. 
w  Hobbs  V.  McLean.  117  U.  S.  567. 

»»  Equitable  Loan  &  Security  Co.  v.  Waring.  117  Ga.  599. 


Contracts  223 

with  the  common  law  rights  of  the  contracting  parties,  the 
former  rather  than  the  latter  construction  is  to  be  adopted. ^ 
If  the  true  meaning  of  a  contract  is  in  doubt,  the  courts  will 
adopt  for  it  the  meaning  the  parties  have  ascribed  to  it.^ 
Contracts  that  require  construction  are  interpreted  most 
strongly  against  the  parties  who  prepare  them  and  most 
favorably  to  the  other  parties.''  If  a  contract  is  partly 
written  and  partly  printed  and  the  written  and  printed 
parts  are  in  conflict  and  so  repugnant  to  each  other  that 
they  cannot  be  reconciled,  the  written  parts  must  prevail 
over  the  printed  parts.*  The  relationship  to  each  other 
of  the  contracting  persons,  their  environment  when  mak- 
ing their  contract,  and  their  connection  with  the  subject 
matter  of  the  contract  are  all  aids  to  its  interpretation 
when  interpretation  is  needed.^  Everything  that  should 
be  fairly  implied  from  the  terms  or  nature  of  a  contract  is 
held  to  be  a  part  of  it.^  All  contracts  have  the  statutes 
and  settled  law  of  the  states  in  which  they  are  made  for  a 
part  of  their  provisions.^  The  laws  in  force  in  the  place 
where  it  is  entered  into  always  form  a  part  of  every  con- 
tract.^ 


»  Ullman  v.  Chicago  &  N.  W.  R.  R.,  112  Wis.  150. 

2  Cambria  Iron  Co.  v.  Union  Trust  Co.,  154  Ind.  291 ;  Webster  v. 
Clark,  34  Fla.  637  ;   Sattler  v.  Hallock,  supra. 

3  Orient  Mut.  Ins.  Co.  v.  Wright,  1  Wall.  456 ;  Garrison  v.  U.  S.,  7 
Wall.  688 ;    Noonan  v.  Bradley,  9  Wall.  394. 

*  Kratzenstein  v.  Western  Assurance  Co.,  116  N.  Y.  54. 

6  Chicago  R.  I.  &  P.  R.  R.  v.  Denver  &  R.  G.  R.  R.,   143  U.  S.  596. 
«  Lawler  v.    Murphy,    58   Conn.   294. 
'  Deweese  v.  Smith,  106  Fed.  R.  438. 

*  Bronson  v.  Kinzie,  1  How.  U.  S.  311;  Von  Hoffman  v.  Quincy,  4 
Wall.  535 ;  Walker  v.  Whitehead,  16  id.  314 ;  Conn.  Mut.  Life  Ins.  Co. 
V.  Cushman,  108  U.  S.  51. 


CHAPTER  XX 

ORAL   AND    WRITTEN    CONTRACTS 

§§  145-150 

§  145.     The  statute  of  frauds. 

In  the  year  1676,  the  twenty-ninth  of  the  reign  of  King 
Charles  II,  the  British  ParUament  enacted  a  statute  for 
the  prevention  of  frauds  and  perjuries  which  has  come 
popularly  to  be  known  both  by  laymen  and  lawyers  as  the 
Statute  of  Frauds.  The  statute  made  it  necessary  to  the 
validity  of  certain  classes  of  contracts  in  order  that  they 
might  be  enforced  in  courts  of  justice  that  they  be  put  in 
writing  and  signed  by  the  persons  to  be  charged  upon 
them.  The  parts  of  that  statute  of  importance  here  are, 
in  particular,  the  fourth  and  seventeenth  sections.  By 
the  fourth  section  of  the  statute  no  action  was  permitted 
to  charge  an  executor  or  administrator  upon  any  special 
promise  to  answer  damages  out  of  his  own  estate ;  or  to 
charge  any  person  upon  a  special  promise  to  answer  for 
the  debt,  default,  or  miscarriage  of  another  person ;  or  to 
charge  a  person  upon  any  agreement  made  upon  considera- 
tion of  marriage,  or  upon  any  contract  of  sale  of  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concern- 
ing them ;  or  upon  any  agreement  that  was  not  to  be  per- 
formed within  one  year  after  it  was  made,  unless  the  con- 
tract upon  which  the  action  should  be  brought,  or  some 

224 


Oral  and  Written  Contracts  225 

note  or  memorandum  of  such  contract,  should  be  in  writing 
and  signed  by  the  person  to  be  charged  or  by  some  one  by 
him  duly  authorized  to  sign  it  in  his  behalf.  By  the  seven- 
teenth section  of  the  statute  no  contract  for  the  sale  of 
goods,  wares,  and  merchandise  for  the  price  of  ten  pounds 
sterling  (the  equivalent  of  fifty  dollars),  or  upwards 
should  be  allowed  to  be  good  unless  the  buyer  took  part 
of  the  property  sold,  gave  something  as  earnest  to  bind 
the  bargain,  made  a  part  payment  on  account  of  the 
price,  or  unless  a  note  or  memorandum  of  the  purchase 
and  sale  should  be  written  and  signed  by  the  persons  to  be 
charged  or  by  their  lawfully  appointed  agents.  These  two 
sections,  in  substance,  but  with  considerable  differences 
in  verbiage,  have  been  adopted  in  almost  all  of  the  states 
of  the  American  Union.  The  decisions  in  England  and 
the  United  States  applying  this  statute  to  the  various 
classes  of  contracts  mentioned  in  it  have  been  exceedingly 
numerous  and  have  dealt  with  a  great  many  problems  of 
extreme  difficulty.  The  statute  has  been  the  text  of  sev- 
eral treatises  and  much  learning  has  been  devoted  to  its 
exposition  and  the  discussion  of  cases  that  have  arisen 
under  it. 


§  146.     The  validity  oj  oral  contracts. 

The  statute  of  frauds  does  not  affect  all  contracts,  but 
only  certain  designated  ones.  Those  not  within  its  terms, 
whether  written  or  unwritten,  are  still  as  valid  as  they 
were  before  the  statute  was  enacted.  For  example,  agree- 
ments to  manufacture  and  deliver  at  stated  prices  articles 
or  commodities  not  in  existence  have  been  held  to  be  not 


226  Law  for  the  American  Farmer 

sales  of  goods,  wares,  or  merchandise,  but  contracts  to  per- 
form work  and  labor  and  furnish  materials,  and  therefore, 
although  the  price  in  a  given  case  exceeds  fifty  dollars, 
they  are  not  void  by  the  statute  if  oral.^  And  again: 
one's  oral  engagement  to  discharge  an  obligation  of  his 
own  is  not  within  the  statute,  although  as  an  incident  to 
his  doing  so  he  will  thereby  also  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another  person.  Thus  the  statute 
of  frauds  is  no  defense  to  a  debtor  who  transfers  to  his 
creditor  another's  promissory  note  and  guarantees  its  pay- 
ment, ^  or  to  a  purchaser  of  real  property  who  orally  agrees 
to  assume  and  pay  an  outstanding  incumbrance  on  it  as  a 
part  of  the  purchase  price.^  The  statute  does  not  even 
make  oral  contracts  that  are  within  its  terms  illegal;  it 
simply  prevents  their  enforcement  if  the  person  against 
whom  enforcement  is  sought  chooses  to  set  up  the  defense 
of  the  statute.*  A  contract  required  by  law  to  be  written 
may  be  composed  of  several  separate  papers,  each  of 
which  forms  a  part  of  the  contract.^  Contracts  only 
partly  in  writing  and  completed  orally  are  classed  as  parol 
contracts.^  And,  except  in  so  far  as  they  are  affected  by 
the  statute  of  frauds,  there  is  no  difference  in  standing 
before  the  law  of  an  oral  contract  and  one  in  writing  but 
not  a  sealed  instrument.^ 

»  Parsons  v.  Loucks,  48  N.  Y.  17. 

2  Darst  V.  Bates,  95  111.  493  ;    Milks  v.  Rich,  80  N.  Y.  269 ;   Morris  v. 
Gaines,  82  Tex.  255 ;    Eagle  Mach.  Co.  v.  Shattuck,  53  Wis.  455. 

3  Enos  V.  Anderson,  40  Colo.  395. 
^  Browne,  Stat,  of  Frauds,  §  115  o. 

'  Salmon  Falls  M'f'g  Co.  v.  Goddard,  14  How.  U.  S.  446;    Ryan  v. 
U.  S.,  136  U.  S.  68;   Bibb  v.  Allen,  149  U.  S.  481. 

«  Louisville  N.  A.  &  C.  R.  R.  v.  Reynolds,  118  Ind.  170. 
'  Emerson  v.  Shores,  95  Me.  237. 


Oral  and  Written  Contracts  227 

§  147.     Contracts  concerning  real  property. 

Any  oral  agreement  relating  to  real  property  is  ordi- 
narily invalid  by  the  statute  of  frauds  ^  in  all  jurisdictions 
where  the  statute  is  in  force. ^  It  is  otherwise  in  states 
which  have  never  enacted  the  statute.^  The  payment  of 
the  purchase  price  upon  an  oral  contract  to  sell  land  is  in 
general  not  deemed  sufficient  to  take  the  contract  out  of 
the  operation  of  the  statute/  but  if  the  vendor  gives  a 
written  receipt  for  the  purchase  money  and  in  it  describes 
the  land  in  such  a  way  as  certainly  to  identify  it,  the 
requirements  of  the  statute  will  be  satisfied.^  All  the  es- 
sentials of  a  contract  for  the  sale  of  land  —  the  description 
of  the  property,  terms  of  sale,  identification  of  the  parties 
—  must  be  in  writing  to  satisfy  the  statute;  nothing  can 
be  supplied  by  oral  testimony.^  An  oral  contract  to  sell 
land  is  not  taken  out  of  the  application  of  the  statute,  even 
by  the  execution  and  acknowledgment  of  a  deed,  so  long  as 
the  conveyance  is  withheld  from  delivery.''  A  sale  of  wild 
grass  growing  on  the  seller's  land  is  a  sale  of  an  interest  in 
real  estate,  and  to  be  valid  requires  a  written  contract.**  In 
general,  all  sales  of  growing  grasses  and  standing  timber 
are  deemed  agreements  to  sell  interests  in  lands  within  the 
terms  of  the  statute  of  frauds  and  are  required  to  be  in 

J  Randall  v.  Howard,  2  Black,  585. 

2  Lowe  V.  Turpie,   147  Ind.  652. 

3  McKennon  v.  Winn,  1  Okla.  327. 

*  Cooper  V.  Colson,  66  N.  J.  Eq.  328. 
'  Henry  v.  Black,  210  Pa.  St.  245. 

«  Mentz  V.  Newweitter,  122  N.  Y.  491 ;  Lester  v.  Heidt,  86  Ga.  226; 
Lewis  V.  Wood,  153  Mass.  321. 
'  Morrow  v.  Moore,  98  Me.  373. 
8  Kirkeby  v.  Erickson,  90  Minn.  299. 


228  Law  for  the  American  Farmer 

writing  to  be  valid. ^  The  title  to  growing  trees  can  only- 
pass  by  a  writing.^  An  oral  sale  of  standing  timber  is 
nothing  but  a  license  to  go  upon  the  land  and  cut  the  tim- 
ber,^ but  though  not  valid  as  a  contract,  it  is  good  as  a 
license  until  revoked,  and  the  timber  cut  by  virtue  of  it 
before  revocation  belongs  to  the  buyer.^  The  rule  is  not 
universal.  In  Maine  and  Maryland  oral  sales  of  growing 
timber  to  be  cut  and  removed  at  once  by  the  purchaser 
have  been  held  to  be  not  within  the  statute.^  An  oral 
agreement  settling  a  disputed  boundary  line  is  generally 
held  to  lie  outside  of  the  statute  and  to  be  valid.^ 

§  148.     Contracts  not  to  he  performed  within  the  year. 

To  render  an  oral  contract  invalid  under  the  operation  of 
the  statute  of  frauds  on  the  ground  that  it  is  not  to  be  per- 
formed within  the  year,  it  must  affirmatively  appear  that 
it  cannot  possibly  be  performed  until  the  year  has  elapsed.^ 
It  is  not  sufficient  to  invalidate  it  that  it  is  highly  improb- 
able that  it  can  be  performed  within  the  year.  Thus  an 
oral  contract  to  put  in  and  harvest  a  crop  may  conceivably 
be  performed  within  a  year,  and  therefore  is  good,*  and 
this  is  true  although  the  contract  is  made  in  the  fall  and 

1  Hirth  I'.  Graham,  50  Ohio  St.  57 ;  Carpenter  v.  Medford,  99  N.  C. 
495 ;  Seymour  v.  Cushway,  100  Wis.  580 ;  Smith  v.  Leighton,  38  Kan. 
544 ;    Mighell  v.  Dougherty,  86  Iowa,  480. 

2  Pierrepont  v.  Barnard,  5  Barb.  364 ;  Magnetic  Ore  Co.  v.  Markbury 
Lum.  Co.,  104  Ala.  465. 

3  Hodsdon  v.  Kennett,  73  N.  H.  225. 

<  Antrim  Iron  W'ks  v.  Anderson,  140  Mich.  702. 

'  Emerson  v.  Shores,  supra;   Leonard  v.  Medford,  85  Md.  666. 

•  Boyd  V.  Graves,  4  "Wheat.  513. 

'  Walker  v.  Johnson,  96  U.  S.  424. 

8  Cuyler  v.  Crane,  25  Hun,  67. 


Oral  and  Written  Contracts  229 

possession  of  the  land  is  not  taken  until  the  following 
spring.^  If  a  contract  by  its  terms  cannot  possibly  be 
performed  within  a  year,  it  is  void  under  the  statute  no 
matter  how  short  is  the  time  beyond  the  year  fixed  for  full 
performance. 2  An  oral  agreement  to  cut  timber  from  a 
tract  of  land  as  fast  as  needed  by  the  owner's  mill  is  void 
under  the  statute  as  one  not  to  be  performed  within  a  year, 
when  the  mill,  running  at  its  full  capacity,  cannot  possibly 
work  up  the  timber  under  three  or  four  years,  although  all 
of  it  can  be  cut  within  a  year.^  And  an  oral  contract  to 
clear  land  and  seed  it  down,  payment  to  be  made  by  the 
receipt  of  the  annual  profits  as  they  may  accrue  for  three 
years,  is  void  by  the  statute  upon  the  same  ground.^  Again, 
an  oral  contract  by  which  one  person  agrees  to  buy  a  colt 
to  be  got  by  his  stallion  out  of  the  other's  mare  and  to  pay 
a  certain  price  for  it  when  weaned,  the  dam  and  foal  to 
remain  in  the  seller's  custody  until  the  colt  is  weaned  and 
taken  by  the  buyer,  has  been  held  in  two  cases  to  be  void 
by  the  statute  of  frauds,  because  a  mare's  gestation  period 
being  eleven  months,  and  four  to  six  months  being  re- 
quired to  wean  the  colt,  the  contract  cannot  possibly  be 
performed  within  the  year.^  These  decisions  have  been 
Bomewhat  questioned,®  but  they  do  not  appear  to  have 
been  overruled.  An  action  upon  an  oral  agreement  by 
which  one  person  is  to  furnish  a  cow  to  the  other  at  a  stated 
time  within  a  month  and  allow  him  to  keep  the  animal 

1  Burden  v.  Lucas,  19  Ky.  L.  Rep.  1581. 

2  Chase  v.  Hinkley,  126  Wis.  75. 
»  White  V.  Fitts,  102  Me.  240. 

*  Herrin  v.  Butters,  20  Me.  119. 

6  Lockwood  V.  Barnes,  3  Hill  (N.  Y.)  128 ;  Groves  v.  Cook,  88  Ind.  169. 

•Browne,   Stat,  of  Frauds,   §  280. 


230  Law  for  the  American  Farmer 

for  a  year  afterwards,  and  then  either  buy  it  or  pay  for  its 
use,  when  broken  by  a  refusal  to  dehver  the  cow,  has  been 
held  not  open  to  the  defense  of  the  statute  of  frauds  as  a 
contract  not  to  be  performed  within  a  year  because  the 
breach  terminated  the  contract  in  a  less  time.^ 

§  149.     Effect  of  performance  or  part  performance  of  oral 
contracts  within  the  statute  of  frauds. 

Once  an  oral  contract  covered  by  the  statute  of  frauds 
has  been  fully  performed  by  both  parties  to  it,  their  rights 
and  obligations  growing  out  of  it  are  no  longer  affected  by 
the  statute.^  The  statute  has  no  effect  upon  an  oral  con- 
tract after  it  has  been  performed.^  Thus,  should  one  who 
orally  undertook  to  pay  another's  debt  actually  pay  it,  he 
could  not  recover  back  the  money  on  the  ground  the  stat- 
ute did  not  allow  his  contract  to  be  enforced ;  or,  if  one 
orally  bought,  paid  for,  and  took  away  goods  worth  more 
than  fifty  dollars  he  could  not  return  the  property  and 
recover  back  his  money  on  the  ground  that  the  purchase 
and  sale  was  a  void  contract  within  the  statute  of  frauds. 
In  both  cases  the  contracts  have  been  fully  performed  and 
that  ends  the  matter.  But  a  part  performance  of  an  oral 
contract  is  sufficient  to  take  it  out  from  under  the  statute. 
For  example,  the  delivery  and  acceptance  of  personal  prop- 
erty orally  sold  at  a  price  over  fifty  dollars  will  entitle  the 
seller  to  recover  the  purchase  money.^  The  payment  of 
earnest  money  to  bind  the  bargain,  or  the  payment  of  part 

'  Sheehy  v.  Adarcnc,  41  Vt.  541. 

'  Bibb  V.  Allen,  supra;  Webster  v.  Le  Compte,  74  Md.  249;  liarsen 
V.   .Johnson,    78   Wis.    .300.  'Huntley  v.  Huntley,  114  U.  S.  394. 

^  Browne,  Stat,  of  Frauds,  Chap.  XV.,  §§  315  et  seq. 


Oral  and  Written  Contracts  231 

of  the  agreed  price,  will  take  an  oral  sale  out  of  the  statute.^ 
On  an  oral  sale  at  a  stated  price  the  ton  of  hay  to  be  baled 
by  the  buyer,  the  baling  of  the  hay  by  the  purchaser  is  a 
sufficient  part  performance  to  make  the  contract  good.^ 
Oral  contracts  made  invalid  by  the  statute  of  frauds  are 
often  enforced  by  the  courts  when  they  have  been  per- 
formed or  partly  performed  on  one  side.  This  is  done 
wherever  it  would  be  a  fraud  upon  him  who  has  performed, 
if  the  other  party  should  be  permitted  to  persist  in  his 
refusal  to  perform  on  his  side.^  The  acts  relied  upon  to 
constitute  a  part  performance  of  an  oral  contract  to  take 
it  out  of  the  scope  of  the  statute  of  frauds  must  clearly 
and  definitely  be  done  with  reference  to  and  in  pursuance 
of  the  contract ;  *  such  acts  must  have  been  done  in  re- 
liance upon  the  agreement  and  must  have  been  at  least 
related  to  and  connected  with  the  agreement  even  if  they 
were  not  acts  for  which  the  contract  stipulated.^ 

§  150.     Oral  abrogation  or  alteration  of  written  contracts. 

It  was  anciently  a  rule  of  law  that  a  sealed  contract 
might  not  effectively  be  waived,  varied,  or  discharged 
orally,  but  that  rule  has  virtually  now  become  obsolete.^ 
Any  written  contract  may  at  the  present  time  be  changed 
by  a  later  oral  one,  provided  it  is  not  required  in  law  to  be 
in  writing.'^     As  a  general  rule,  contracts  which  are  required 

1  Ihid.  Chap.  XVI.,  §§  341  et  seq.      2  Driggs  v.  Bush,  152  Mich.  53. 
5  Svanburg  v.  Fosseen,  75  Minn.  350. 

*  Lewis  V.  North,  62  Neb.  552.  >  Brown  v.  Hoag,  35  Minn.  373. 

•  McCreery  v.  Day,  119  N.  Y.  1 ;  McKenzie  v.  Harrison,  120  N.  Y. 
260 ;  Lee  v.  Hawks,  68  Miss.  669. 

'  Chesapeake  &  O.  Canal  Co.  v.  Ray,  101  U.  S.  522;  Teal  v.  Bilby, 
123  U.  S.  572. 


232  Law  for  the  American  Farmer 

by  the  statute  of  frauds  to  be  in  writing  to  be  valid,  —  for 
example,  those  concerning  interests  in  land,  —  may  not  be 
altered  or  modified  by  oral  agreements ;  ^  but  all  other 
written  agreements  may  be  modified  or  superseded  by 
later  oral  agreements  upon  a  new  consideration.^  Oral 
authority,  however,  to  alter  a  sealed  instrument  is  not 
sufficient.^ 

1  Heisley  v.  Swanstrom,  40  Minn.  196;  McConathy  v.  Lanham,  116 
Ky.  735  ;  Clark  v.  Guest,  54  Ohio  St.  298  ;  Heth  v.  Wooldridge,  6  Rand. 
(Va.)  605 ;    Atlee  v.  Bartholomew,  69  Wis.  43. 

2  Piatt  V.  U.  S.,  22  Wall.  496. 
»  Drury  v.  Foster,  2  Wall.  24. 


CHAPTER  XXI 

THE    ENFORCEMENT   OF    CONTRACTS 

§§  151-159 

§  151.     Time  for  performance  when  not  fixed. 

It  is  often  the  case  that  a  contract  leaves  indefinite  the 
time  when  it  is  to  be  performed.  This  does  not  affect  its 
validity  or  prevent  its  enforcement  after  a  sufficient  length 
of  time  has  elapsed  in  which  it  could  or  should  have  been 
performed.  Contracts  that  name  no  time  for  their  per- 
formance are  to  be  performed  in  a  reasonable  time.^  For 
example,  when  goods  are  sold  and  no  time  is  fixed  for  them 
to  be  delivered,  they  must  be  delivered  in  a  reasonable 
time.^  What  is  a  reasonable  time  in  any  particular  case 
depends  upon  a  variety  of  considerations,  —  the  nature  of 
the  contract,  its  subject  matter,  the  purpose  for  which  the 
contract  was  made,  and  all  the  attending  circumstances. 
In  some  cases,  a  reasonable  time  may  be  very  short,  and 
in  others  of  considerable  length.  An  agreement  between 
a  buyer  and  seller  that  the  former  will  accept  a  specified 
quantity  of  a  commodity  sold  at  a  named  price  if  delivered 
between  certain  dates  entitles  the  seller  to  select  his  own 
time  within  the  named  limits  in  which  to  make  delivery.^ 

1  Whiting  v.  Gray,  27  Fla.  482. 

2  Eppens,  S.  &  W.  Co.  v.  Littlcjohn,  164  N.  Y.  187. 

3  Wheeler  v.  New  Brunswick  &  C.  R.  R.,  115  U.  S.  29. 

233 


234  Law  for  the  American  Farmer 

A  contract  to  pay  a  sum  of  money  as  soon  as  a  crop  can  be 
sold  is  a  contract  to  pay  it  within  a  reasonable  time  after 
the  crop  is  ready  for  sale.^  And  a  contract  for  the  sale  of 
apple  and  peach  trees  and  grape  vine  roots,  to  be  delivered 
in  the  fall,  requires  deliver}^  to  be  made  in  the  autumn  at 
a  time  suitable  for  transplanting  and  at  the  usual  time 
selected  by  nurserymen  and  fruit  growers  for  transplanting 
in  that  particular  territory.^ 

§  152.     Compelling  specific  performance. 

A  court  of  equity  may  compel  people  to  perform  the 
contracts  they  have  made,  but  it  has  no  power  to  make 
contracts  for  them.^  Any  one  who  seeks  to  compel  an- 
other to  perform  a  contract  must  show  a  performance  on 
his  own  part  or,  at  least,  his  willingness  and  ability  to  per- 
form.^ It  is  entirely  discretionary  with  a  court  of  equity 
either  to  decree  or  deny  specific  performance  of  a  contract. 
Decreeing  it  is  a  matter  of  grace  to  him  who  asks  it,  not  his 
right,  but  the  judicial  discretion  is  never  exercised  arbi- 
trarily or  capriciously.^  To  warrant  a  court  in  compelling 
the  specific  performance  of  a  contract  it  must  be  legally  a 
valid  one,^  free  from  every  imputation  of  fraud  or  deceit,^ 
not  unreasonable,  nor  unjust,  nor  inequitable,  nor  founded 

J  Nunez  v.  Dautel,  19  Wall.  560. 

2  Weltner  v.  Riggs,  3  W.  Va.  445. 

3  Hunt  V.  Rhodes,  1  Pet.  1. 

*  Boone  v.  Missouri  Iron  Co.,  17  How.  U.  S.  340 ;  Walsh  v.  Preston, 
109  U.  S.  297. 

6  Pope  M'f  g  Co.  V.  Gormully,  144  U.  S.  224 ;  Ryan  v.  McLane,  91 
Md.  175 ;   Wlnne  v.  Winne,  166  N.  Y.  263. 

6  Barry  v.  Coombe,  1  Pet.  640 ;  Hedges  v.  Dixon  Co.,  150  U.  S.  182. 

'  Kelly  V.  Cent.  Pac.  R.  R.,  74  Cal.  557 ;  Brown  v.  Pitcairn,  148  Pa. 
St.  387. 


The  Enforcement  of  Contracts  235 

in  a  mistake/  and  neither  hard  nor  unconscionable.^ 
A  court  will  not  attempt  to  compel  one  to  perform  a  con- 
tract that  he  has  the  power  to  rescind  or  terminate,^  or 
one  which  he  cannot  enforce  against  the  other  party.^  A 
person  will  not  be  compelled  to  carry  out  a  vague  and  un- 
certain contract,^  nor  one  in  which  some  of  its  terms  are 
left  open  for  future  settlement.^  A  court  will  refuse  a 
decree  of  specific  performance  to  one  who  unreasonably 
delays  to  sue  for  it/  or  if  he  who  asks  for  it  can  be  fully 
compensated  in  another  way.^  Contracts  to  convey  land 
must  describe  the  property  sufficiently  so  that  it  can  be 
identified  with  certainty/  for  equity  will  not  decree  the 
specific  performance  of  a  contract  for  an  interest  in  land 
unless  it  is  definite,  and,  if  the  contract  is  oral,  unless  it  is 
definite  in  all  its  parts. ^^  In  general,  specific  performance 
of  an  oral  agreement  to  convey  land  will  not  be  decreed, 
because  such  a  contract  is  void  by  the  statute  of  frauds, ^^ 
but  the  courts  make  an  exception  where  the  contract  has 
been  partly  performed  and  injustice  would  result  from 
denying  a  decree. ^^  The  courts  will  not  compel  the  specific 
performance  of  a  contract  to  purchase  land  when  the  title 

1  King  V.  Hamilton,  4  Pet.  311 ;  Cathcart  v.  Robinson,  5  Pet.  264. 

2  Swint  V.  Carr,  76  Ga.  322. 

3  So.  Exp.  Co.  V.  West.  N.  C.  R.  R.,  99  U.  S.  191. 
*  Rutland  Marble  Co.  v.  Ripley,  10  Wall.  339. 

6  Colson  V.  Thompson,  2  Wheat.  336 ;   King  v.  Thompson,  9  Pet.  204. 

«  Metcalf  V.  Hart,  3  Wyo.  513. 

'  Holgate  V.  Eaton,  116  U.  S.  33;    Nickerson  v.  Nickerson,  127  U.  S. 
668. 

8  Memphis  v.  Brown,  20  Wall.  289. 

«  Sanders  v.  Bryer,  152  Mass.  141 ;    Hayes  v.  O'Brien,  149  111.  403. 
1"  Crosdale  v.  Lanigan,  129  N.  Y.  604. 
11  May  V.  Sloan,  101  U.  S.  231. 
"  Williams  v.  Morris,  95  U.  S.  444. 


236  Law  for  the  American  Farmer 

is  defective  or  unmarketable/  nor  in  case  the  vendor  has 
conveyed  away  the  land  to  a  bona  fide  purchaser.^  The 
remedy  of  specific  performance  is  seldom  allowed  in  respect 
of  contracts  relating  to  personal  property.'^  Unless  the 
remedy  at  law  of  a  suit  for  damages  is  inadequate,  specific 
performance  of  a  contract  for  the  sale  of  chattels  or  other 
personal  property  will  not,  as  a  general  thing,  be  decreed.* 
An  exception  is  made  when  the  property  is  of  such  a  nature 
that  it  cannot  be  purchased  in  the  market.^ 

§  153.     Avoiding  performance. 

Neither  party  may  put  an  end  to  a  contract  without 
the  other's  consent.®  And  he  who  asks  to  be  relieved  from 
his  contract  must  return  or  tender  back  the  consideration 
he  has  received.^  The  courts  will  not  annul  a  contract 
merely  because  it  is  unwise  or  even  foolish.^  A  person 
who  voluntarily  signs  a  contract  is  conclusively  presumed 
to  have  read  and  understood  its  terms,^  and  he  is  bound 
by  it  though  he  did  not  read  it,^°  provided  he  was  not  pre- 
vented by  fraud  from  reading  it.  Thus,  it  is  no  defense 
to  the  maker  of  a  promissory  note  that  it  is  different  from 
what  he  supposed  it  to  be  and  that  he  signed  it  without 

>  Wesley  v.  Eells,  177  U.  S.  370. 

2  Halsell  V.  Renfrew,  202  U.  S.  287. 

3  Clarke  v.   White.    12  Pet.   178. 

*  Manton  v.  Ray,  18  R.  I.  672;   Eckstein  v.  Downing,  64  N.  H.  248 
Steinmeyer  v.  Siebert,   190  Pa.  St.  471. 

5  Nor.  Cent.  R.  R.  v.  Walworth,  193  Pa.  St.  207. 

«  West.  Union  Tel.  Co.  v.  Penn.  R.  R.,  129  Fed.  Rep.  849. 

'  Cates  V.  Sparkman,  73  Tex.  619. 

8  Equitable  Loan  &  Sec.  Co.  v.  Waring,  117  Ga.  599. 

9  Fivey  v.  Penn.  R.  R.,  67  N.  J.  L.  627. 
'»  Upton  V.  Tribilcock,  91  U.  S.  45. 


The  Enforcement  of  Contracts  237 

reading  it,  relying  on  what  the  person  who  drew  it  told  him, 
if  no  fraud  was  practiced  upon  him  and  he  had  ample  op- 
portunity to  read  it  and  was  not  prevented  from  so  doing.^ 
Nor  may  one  be  relieved  from  a  contract  that  he  made  freely, 
after  abundant  time  to  investigate,  upon  the  ground  that 
he  was  in  straitened  circumstances  and  pressing  need  of 
money  when  he  made  it  and  so  accepted  a  less  consideration 
than  he  ought  to  have  received. ^  Mere  inadequacy  of  the 
price  paid  for  a  purchase  is  not  a  sufficient  ground  for  set- 
ting aside  a  sale  that  was  in  other  respects  perfectly  fair.^ 
It  is  a  rule  of  common  law  that  whosoever  attacks  the 
validity  of  a  contract  assumes  the  burden  of  proving  its 
invalidity.^ 

§154.     Excuses  for  non-performance. 

If  an  oral  contract  is  void  under  the  statute  of  frauds, 
no  excuse  is  needed  for  refusing  to  perform  it.  One  may 
decline  to  perform  with  or  without  reason.'^  And  one  is 
excused  from  performing  a  contract  which  the  law  has 
made  impossible  of  performance.*^  The  performance  of  a 
contract  which  it  is  impossible  to  perform  need  not  be 
attempted.  No  liability  is  incurred  for  not  doing  what 
cannot  be  done.  But  to  excuse  the  failure  to  perform  a 
contract  on  the  ground  that  performance  is  impossible, 
the  impossibility  must  be  inherent  in  the  nature  of  the 

1  Walton  Guano  Co.  v.  Copelan,  112  Ga.  319. 
«  French  v.  Shoemaker,  14  Wall.  314. 

3  Eyre  v.  Potter,  15  How.  U.  S.  42  ;  Hammond  v.  Wallace,  85  Cal.  622. 
*  Bayles  v.  Kan.  Pac.  R.  R.,  13  Colo.  181. 
'  Kemensky  v.  Chapin,  193  Mass.  500. 

«  Macon  &  B.  R.  R.  v.  Gibson,  85  Ga.  1 ;  Middlesex  Water  Co.  r. 
Knappmann  Whiting  Co.,  64  N.  J.  L.  240. 


238  Law  Jor  the  American  Farmer 

thing  contracted  to  be  done  and  not  in  the  mere  inability 
to  do  it  of  the  person  who  contracted  to  do  it.  The  thing 
to  be  done  must  be  something  nobody  can  do.  If  it  is 
possible  for  anybody  to  do  it,  he  who  contracted  to  do  it 
will  not  be  excused  for  not  doing  it.^  The  rule  that  one 
who  makes  an  absolute  executory  contract  is  not  excused 
from  performing  it  by  his  inability  to  do  so  through  mis- 
fortune or  accident,  but  must  answer  in  damages  if  he  has 
failed  to  foresee  and  provide  against  what  happened,  is 
softened  by  the  rule  that  courts  may  imply  a  condition  in  a 
contract  relieving  a  party  when  without  his  fault  per- 
formance became  impossible  and  both  parties  contemplated 
at  the  outset  that  contingencies  might  arise  to  prevent  the 
carrying  out  of  the  contract.  Thus  where  a  contract 
bound  a  farmer  to  sow  and  grow  a  certain  acreage  of  sugar 
beets  on  his  farm  and  to  follow  minute  instructions  in 
cultivating  the  crop. and  then  to  dehver  the  beets  raised 
to  the  other  party  or,  if  he  failed,  to  pay  twenty-five 
dollars  an  acre  as  damages,  the  court  implied  the  condition 
that  if  he  faithfully  followed  the  instructions,  and  the  seed 
planted  failed  to  produce  a  crop  because  the  climate  was 
unpropitious,  the  farmer  should  not  be  liable.^  A  farmer 
who  agrees  to  raise,  sell,  and  deliver  a  certain  quantity  of 
beans  of  various  kinds,  Avithout  designating  any  particular 
tract  of  land  upon  which  they  are  to  be  grown,  is  not  ex- 
cused from  performing  his  contract  by  the  unexpected 
blasting  of  his  crop  by  early  frosts  so  that  he  is  unable  to 
deliver  the  quantity  he  engaged  to  deliver.^    And  one  who 

1  Reid  V.  Alaska  Pack.  Co.,  43  Ore.  429 ;   Klauber  v.  S.  Diego  St.  Car 
Co.,  95  Cal.  353. 

2  Whipple  V.  Lyons  Beet  Sugar  Ref.  Co.,  118  N.  Y.  Supp.  338,  1150. 
»  Anderson  v.  May,  50  Minn.  280. 


The  Enforcement  of  Contracts  239 

has  contracted  to  sell  and  deliver  a  crop  of  hops  cannot 
refuse  to  perform  his  contract  on  the  ground  that  the  crop 
raised  was  not  up  to  the  standard  of  quality  agreed  upon, 
when  the  buyer  is  willing  to  accept  the  crop  as  a  sufficient 
performance  of  the  contract  ^ 

§  155.     Illegal  contracts. 

All  contracts  made  in  violation  of  law  are  absolutely 
void; 2  this  is  a  rule  to  which  there  is  no  exception.^  All 
contracts  that  contravene  the  provisions  of  any  statute 
are  nullities/  and  contracts  void  at  common  law  because 
contrary  to  public  policy  are  equally  as  illegal  and  void  as 
if  they  were  contrary  to  some  express  statute.^  If  a  con- 
tract is  void  it  is  void  as  to  everybody  whose  rights  would 
be  affected  by  it  if  it  was  valid.^  All  contracts  forbidden 
by  law  or  contrary  to  good  morals  are  void  as  against  public 
policy^  No  right  of  action  can  spring  out  of  an  illegal 
contract  ^  nor  from  a  deliberate  violation  of  law.^  A  suit 
will  not  lie  to  enforce  a  contract  made  in  violation  of  a 
statute,  or  of  the  common  law,  or  against  pubhc  policy. i" 
The  courts  refuse  to  enforce  such  a  contract;  ^^  the  law  will 


'  Livesley  v.  Johnston,  45  Ore.  30. 

2  Youngblood  v.  Birmingham  Trust  Co.,  95  Ala.  521 ;  Mason  v.  Mc- 
Leod,  57  Kan.  105 ;  Buckley  v.  Humason,  50  Minn.  195 ;  Haggerty  v. 
St.  Louis  Ice  M'f'g  Co.,  143  Mo.  238. 

3  Cox  V.  Donnelly,  34  Ark.  762. 

*  State  Bank  v.  Coquillard,  6  Ind.  232. 

^  Harvey  v.  Merrill,   150   Mass.   1.      e  Kellogg  v.  Howes,  81  Cal.  170. 

^  Standard  Furn.  Co.  v.  Van  Alstine,  22  Wash.  670. 

8  Pratt  V.  Short,  79  N.  Y.  437. 

9  Jemison  v.  Birmingham  &  A.  R.  R.,  125  Ala.  378. 
>»  Kelton  V.  Millikin,  2  Coldw.  410. 

"  Presbyterian  Ministers'  Fund  v.  Thomas,  126  Wis.  281. 


240  Law  for  the  American  Farmer 

not  lend  its  aid  to  enforce  a  contract  founded  on  its  own 
violation.^  It  will  aid  neither  party  to  a  contract  against 
public  policy  or  repugnant  to  sound  morality  and  civic 
honesty; 2  it  will  simply  leave  the  parties  to  such  a  contract 
in  whatever  situation  it  finds  them.^  A  contract  that  is 
void  where  it  is  made  and  is  to  be  performed  is  void  every- 
where,^ and  if  it  is  invalid  as  to  one  party,  it  is  not  valid  as 
to  the  other.^  A  contract  that  is  void  because  contrary  to 
a  statute  or  public  policy  cannot  be  ratified  or  made  good 
by  any  subsequent  agreement,^  nor  validated  by  estoppel.'' 
As  long  as  an  illegal  contract  remains  unperformed,  either 
party  may  rescind  it  without  regard  to  which  one  is  the 
more  blamable.^  Public  policy,  as  it  bears  upon  contracts, 
is  the  principle  which  maintains  that  no  one  can  rightfully 
do  or  bind  himself  to  do  aught  inimical  to  the  public  good ;  ^ 
thus,  contracts  which  have  for  their  purpose  to  monopolize 
the  market  and  control  prices  of  a  given  commodity  are 
contrary  to  public  policy  and  therefore  illegal  and  void.^** 
If  a  contract  seemingly  illegal  maybe  performed  in  any  legal 
way,  the  courts  will  assume  that  the  parties  to  it  intended  to 
perform  it  in  that  way  and  will  hold  them  to  that  method." 

1  Coppell  V.  Hall,  7  Wall.  542. 

s  Veazey  v.  Allen,  173  N.  Y.  359 ;   Woodson  v.  Hopkins,  85  Miss.  171. 
»  Brooks  V.  Cooper,  50  N.  J.  Eq.  761 ;    Richardson  v.  Buhl,  77  Mich. 
632. 

*  Buckley  v.  Humason,  supra. 

*  Portland  v.  Bituminous  Pav.  Co.,  33  Ore.  307. 
«  Moog  V.  Hannon,  93  Ala.  503. 

'  Reed  v.  Johnson,  27  Wash.  42. 

»  Congress  &  Emp.  Spring  Co.  v.  Knowlton,  103  U.  S.  49. 

»  Superior  City  v.  Douglas  Co.  Teleph.  Co.,  122  N.  W.  Rep.  1023. 
"  Arnot  V.  Pittston  &  C.  Coal  Co.,  68  N.  Y.  558. 
"  Burne  v.  Lee,  104  Pac.  Rep.  438. 


The  Enforcement  of  Contracts  241 

§  156.     WageriTig  or  gambling  contracts. 

All  wagering  and  gambling  contracts  generally  through- 
out the  United  States  are  held  to  be  illegal  and  void  as 
against  public  pohcy.^  Wagers  are  inconsistent  with  the 
interest  of  society  and  in  conflict  with  the  morals  of  the 
age.^  Thus,  a  contract  by  which  one  person  for  a  sum 
of  money  paid  him  by  another  guarantees  that  the  other's 
cattle  will  bring  in  the  market  when  sold  a  certain  stated 
price  the  pound,  and  the  other  in  turn  promises  to  pay  the 
guarantor  all  the  excess  of  the  seUing  price  above  the  sum 
named,  is  a  gambUng  contract  and  hence  illegal  and  void.^ 
The  famous  "Bohemian  oats''  scheme,  exploited  some 
years  ago  in  the  Middle  West,  by  which  a  set  of  sharpers 
made  contracts  with  the  farmers  that  in  consideration 
of  receiving  ten  or  fifteen  dollars  a  bushel  for  a  certain 
quantity  of  the  so-called  Bohemian  oats  they  would  sell 
for  the  purchaser  the  next  season  a  larger  quantity  at  the 
same  or  a  higher  price,  had  the  gambling  element  as  a  prom- 
inent feature.  The  Ohio  courts  refused  to  allow  the 
victims  to  recover  back  the  money  they  had  paid,^  and  the 
Iowa  courts  declined  to  cancel  the  notes  given  to  the  swind- 
lers for  oats  purchased.^  The  illegality  of  these  contracts 
was  obvious,  but  in  Michigan  the  victimized  farmers  were 
more  tenderly  treated  in  the  courts.  While  it  was  ad- 
mitted there  that  the  law  rigidly  forbids  rehef  to  be  granted 
in   illegal   transactions   where   both   parties   are   equally 

1  Irwin  V.  Williar,  110  U.  S.  499. 

2  Bernard  v.   Taylor,   23  Ore.  416. 

'  First  Nat.  Bk.  v.  Carroll,  80  Iowa,  11. 

<  Shirey  v.  Ulsh,  2  Ohio  C.  C.  401 ;   Carter  v.  Lillie,  3  id.  364. 

^  Shipley  v.  Reasoner,  80  Iowa,  548. 


242  Law  for  the  American  Farmer 

guilty,  nevertheless  it  was  said  that  if  a  person  is  defrauded 
by  the  misrepresentations  of  another  person  who  assumes 
to  know,  so  that  the  first  is  actually  deceived  and  not 
consciously  does  wrong,  the  fact  that  the  transaction  in 
which  he  takes  part  is  against  public  policy  does  not  neces- 
sarily compel  the  victim  to  submit  to  the  loss  caused  by 
the  fraud  of  the  real  villain.^  Accordingly  a  recovery 
upon  a  promissory  note  given  for  Bohemian  oats  bought 
at  fifteen  dollars  a  bushel  was  denied.^  The  law  protects 
the  ignorant  and  credulous  man  against  one  who  defrauds 
him  and  treats  his  credulity  and  ignorance  as  innocence  in 
an  unlawful  transaction  in  which  he  has  been  swindled.^ 
And  so,  one  who  is  really  ignorant  of  the  nature  of  the 
"Bohemian  oats"  swindle  and  does  not  suspect  the  cor- 
porate existence  of  the  pretended  company  exploiting  the 
scheme,  who  believes  in  its  integrity  and  honesty  of  purpose, 
and  who  rehes  upon  the  sharper's  representations  that  the 
business  is  an  honest  one,  may  not  be  defeated  in  his  action 
for  fraud  and  deceit  against  the  person  who  inveigled  him 
into  the  scheme  on  the  ground  that  he  was  a  participant 
in  the  illegal  enterprise* 

§157.     Contracts  obtained  hy  fraud. 

Relief  may  always  be  had  in  the  courts  against  a  contract 
secured   by   fraud.^     Fraud   vitiates   every   transaction,® 

1  Hess  V.  Culver,  77  Mich.  698. 

2  Ibid. 

3  Pearl  v.  Walter,  80  Mich.  317. 

*  Knight  V.  Linzey,  80  Mich.  396. 
6  Boyce  v.  Grundy,  3  Pet.  210. 

«  U.  S.  V.  The  Amistad,  15  id.  518;  Stoddard  v.  Chambers,  2  How. 
U.  S.  284. 


The  Enforcement  of  Contracts  243 

nullifies  every  contract.^  Fraud  is  never  presumed ;  it  must 
be  proved;  ^  the  legal  presumptions  are  always  in  favor  of 
honesty  and  innocence,^  An  artifice  by  which  one  is 
induced  to  do  something  which  the  law  would  have  com- 
pelled him  to  do  anyway  is  no  fraud/  and  if  no  damages 
follow  from  a  falsehood  or  a  fraud,  the  law  takes  no  cogni- 
zance of  it.^  A  mere  cherished  intention  to  defraud  with- 
out some  act  or  speech  really  fraudulent  does  not  afford  a 
cause  of  action."  A  fraudulent  transaction  is  not  purged 
of  its  fraud  simply  by  a  strict  and  careful  observance  of  all 
the  legal  forms  in  carrying  it  outJ  Oral  testimony  may 
always  be  adduced  to  establish  fraud  in  procuring  a  con- 
tract.^ It  is  not  necessary  to  have  direct  and  positive 
evidence  to  establish  a  fraud ;  it  may  be  proved  by  cir- 
cumstances, and  in  most  cases  that  is  all  the  proof  that  can 
be  had.^  False  or  fraudulent  misrepresentations  of  ma- 
terial facts  which  induce  a  person  to  make  a  contract 
entitle  him  to  be  released  from  its  obligations. ^°  A  false 
representation  to  afford  an  action  must  be  one  likely  to 
deceive  a  person  of  common  prudence  and  caution  and 
must  be  a  statement  of  an  existing  fact."     A  misrepresen- 

1  Finlayson  v.  Finlayson,   17  Ore.  347. 

2  Farrar  v.  Churchill,  135  U.  S.  609. 

»  N.  Y.  Life  Ins.  Co.  v.  Davis,  96  Va.  737 ;  Mayers  v.  Kaiser,  85  Wis. 
382.  ■"  Deobold  v.  Oppermann,  111  N.  Y.  531. 

*  Kountze  v.  Kennedy,  147  N.  Y.  124  ;  Britton  v.  Sup.  Council  Royal 
Arcanum,  46  N.  J.  Eq.  102. 

6  Clarke  v.  White,  12  Pet.  178. 

">  Graffam  v.  Burgess,  117  U.  S.  180. 

«  Morris  v.  Nixon,  1  How.  U.  S.  118;  Selden  v.  Myers,  20  id.  506; 
Barreda  v.  Silsbee,  2\  id.  146. 

9  Castle  V.  BuUard,  23  id.  172 ;    Rea  v.  Missouri,  17  Wall.  532. 

"  Rorer  Iron  Co.  v.  Trout,  83  Va.  397. 

II  Sawyer  v.  Prickett,  19  Wall.  146. 


244  Law  for  the  American  Farmer 

tation  to  vitiate  a  contract  of  sale  must  relate  to  a  material 
matter  which  was  an  inducement  to  make  the  contract, 
which  he  to  whom  it  was  made  had  no  means  of  knowing 
whether  it  was  true  or  false,  and  upon  which  he  relied,  and 
by  which  he  was  misled  to  his  injury.^  One  who  investi- 
gates for  himself  and  is  not  hindered  from  doing  so  fully 
when  all  the  means  of  knowledge  are  open  to  him  cannot 
escape  obligations  that  he  assumes  on  the  ground  that  the 
other  party  made  false  representations  to  him,  because  he 
did  not  rely  upon  and  was  not  induced  to  act  by  the  other's 
statements.^  Expressing  an  opinion  without  stating  any 
fact  does  not  constitute  fraud.^  An  opinion  as  to  value 
based  upon  uncertain  and  prospective  improvements,  no 
matter  how  erroneous  and  extravagant  it  may  turn  out  to 
be  and  no  matter  what  injury  results  from  accepting  it,  does 
not  amount  to  a  legal  fraud.*  It  is  as  fraudulent  to  affirm 
the  truth  of  what  one  is  ignorant  as  it  is  to  assert  what  one 
knows  to  be  false.^  A  person  who  without  knowledge  of 
its  falsity  recklessly  makes  a  statement  calculated  to  de- 
ceive, which  really  is  false,  is  guilty  of  knowingly  making  a 
false  statement,^  and  it  affords  good  ground  for  rescinding 
a  contract  made  on  the  strength  of  it.''  A  deliberate  con- 
cealment is  equivalent  to  willful  falsehood.^  It  is  a  fraud- 
ulent concealment  if  one  is  silent  when  it  is  his  duty  to 
speak.^    The  suppression  of  a  material  fact  by  one  who  is 

>  Smith  V.  Richards,  13  Pet.  26 ;   Slaughter  v.  Gerson,  13  Wall.  379. 

•  Farrar  v.  Churchill,  supra. 

»  South.  Devel.  Co.  v.  Silva,  125  U.  S.  247. 

•  So.  Branch  Lum.  Co.  v.  Ott,  142  U.  S.  622. 
»  Bullitt  V.   Farrar,   42   Minn.  8. 

•  Cooper  V.  Schlesinger,  111  U.  S.  148.         '  Smith  v.  Richards,  supra. 

•  Crosby  v.  Buchunau,  23  Wall.  420. 

•  Wheeler  v.  N.  Bruns.  «&  C.  R.  R.,  supra. 


The  Enforcement  of  Contracts  245 

bound  in  good  faith  to  disclose  it  is  equivalent  to  a  false 
representation.!  But  there  must  be  some  obligation  to 
make  disclosure;  if  there  is  none,  there  is  no  fraud. 
Thus,  the  purchaser  of  land  who  knows  that  there  is  a 
mine  upon  it  of  which  the  owner  is  in  ignorance,  owes  the 
seller  no  duty  to  inform  him,  and  is  not  bound  to  tell;- 
and  the  mere  fact  that  one  who  sells  an  animal  knows  that 
the  beast  has  a  latent  defect  and  does  not  mention  it  is  no 
fraud  upon  the  buyer ;  to  be  such  the  seller  must  do  or  say 
something  to  deceive  the  buyer  or  to  prevent  his  discovering 
the  defect.^ 

§  158.     Contracts  procured  hy  duress. 

Duress  is  a  sort  of  fraud  in  which  some  form  of  com- 
pulsion takes  the  place  of  deceit  in  accomplishing  an  in- 
j ury .^  Duress  may  be  of  either  person  or  goods.^  There  are 
two  kinds  of  duress  of  person:  (1)  that  of  imprisonment, 
and  (2)  that  of  fear  —  the  fear  of  death,  mayhem,  or  im- 
prisonment.^ Unlawful  duress  is  such  constraint  or  peril, 
either  inflicted  or  threatened  and  impending,  which  in  its 
severity  or  apprehension  is  sufficient  to  overpower  the  will 
of  a  person  of  ordinary  firmness.''  A  contract  procured 
under  threats  made  by  one  party  to  it  against  the  life  of 
the  other  may  be  avoided  for  duress;*  such  a  contract  is 
inoperative  and  void.^     Payments  compelled  by  duress 

1  Tyler  v.  Savage,  143  U.  S.  79. 

'  Stackpole  v.  Hancock,  40  Fla.  362. 

^  Court  V.  Snyder,  2  Ind.  App.  440. 

*  Foote  V.  De  Poy,  126  Iowa,  366. 

'  Ibid.     Bailey  v.  Devine,  123  Ga.  653. 

•  Ibid.  7  U.  S.  V.  Huckabee,  16  WaU.  414. 
»  Brown  v.   Pierce,  7  id.  205.       *  Baker  v.  Morton,  12  id.  160. 


246  Law  for  the  American  Farmer 

either  of  person  or  of  goods  may  be  recovered  back.^  A 
contract  made  to  regain  property  unlawfully  withheld 
from  him  who  makes  it  may  be  avoided  on  the  ground  of 
duress.^  Whenever  there  is  an  actual  or  threatened 
exercise  of  power  over  a  person's  property  by  one  exacting 
a  payment  of  money,  there  is  duress  which  makes  the  pay- 
ment involuntary  and  compulsory.^  If  an  unlawful 
demand  for  the  payment  of  money  is  made  upon  a  man  and 
he  can  save  his  property  only  by  temporarily  yielding,  he 
may  pay  under  protest  and  recover  back  the  payment;^ 
but  if  he  can  successfully  resist  the  demand  in  court  and 
in  any  way  protect  his  property  without  paying,  he  cannot 
recover  back  the  payment,  though  he  protested.^  Volun- 
tary payments  may  not  be  recovered  back.^  The  fact  that 
they  were  paid  under  protest  makes  no  difference.''  When 
a  buyer  of  cattle  in  order  to  get  possession  of  the  animals 
he  has  purchased,  and  who  otherwise  would  be  exposed  to 
great  loss,  makes  the  seller  a  payment  he  has  no  right  to 
exact  upon  his  refusal  to  part  with  the  beasts  until  he  gets 
it,  the  payment  is  not  voluntary  but  compulsory  and  may 
be  recovered  back.^  A  farmer  compelled  to  pay  un- 
reasonably high  rates  to  an  irrigation  company  to  obtain 
the  necessary  supply  of  water  may  recover  the  excess  over 

1  Sweet  V.  Kimball,  166  Mass.  332 ;    Cribbs  v.  Sowle,  87  Mich.  340 ; 
Joannin  v.  Ogilvie,  49  Minn.  464;   Adams  v.  Irving  Bank,  116  N.  Y.  606. 

2  Oliphant  v.  Markham,  79  Tex.  543. 

3  Cleaveland  v.  Richardson,  132  U.  S.  318. 

*  State  V.  Nelson,  41  Minn.  25 ;   De  la  Cuesta  v.  No.  Amer.  Ins.  Co., 
136  Pa.  St.  62. 
» Ibid. 

«  Hamilton  v.  Dillin,  21  Wall.  73 ;   Little  v.  Bowers,  134  U.  S.  647. 
''Ibid. 
8  Lonergan  v.  Buford,  148  U.  S.  581. 


The  Enforcement  of  Contracts  247 

proper  and  reasonable  rates  when  he  pays  under  protest 
without  assenting  to  the  charges/  There  is  no  duress 
when  one  without  force  or  intimidation  and  with  knowl- 
edge of  all  the  facts  accepts  in  satisfaction  of  a  disputed 
and  unliquidated  claim  a  sum  less  than  he  asserted  to  be 
due.2 

§  159.     Contracts  made  under  mistake. 

To  warrant  reforming  a  contract  on  the  ground  of  mis- 
take, the  mistake  must  be  one  of  both  parties.^  If  facts 
assumed  by  both  parties  to  it  as  a  basis  for  a  contract  do  not 
exist,  there  is  no  contract.''  A  mutual  mistake  as  to  the 
identity  or  existence  of  the  subject  of  a  contract  is  fatal 
to  it.^  Money  may  be  recovered  back  if  it  was  paid  under 
a  mistake  of  fact.^  To  entitle  one  to  j  udicial  relief  because 
of  mistake,  the  mistake  must  have  been  material  in  the 
transaction  and  affected  the  substance  and  not  merely  the 
incidents  of  it ;  and  the  mistake  must  have  been  important 
enough  to  determine  the  action  of  him  who  was  misled.^ 
The  mistaken  fact  must  have  had  a  controlling  influence 
upon  his  conduct,  and  he  must  as  well  have  availed  him- 
self of  all  the  accessible  sources  of  information.^  Ignorance 
of  a  fact  extrinsic  and  unessential  to  the  contract  is  not  such 

1  Salt  River  Val.  Canal  Co.  v.  Nelssen,  12  L.  R.  A.  (N.  S.)  711. 

2  U.  S.  V.  Child,  12  Wall.  232. 

3  Drachler  v.  Foote,  88  App.  Div.  270. 

4  Fink  V.  Smith,  170  Pa.  St.  124 ;  Nordyke  &  M.  Co.  v.  Kehlor,  155 
Mo.  643. 

6  Bedell  v.  Wilder,  65  Vt.  406 ;   Hecht  v.  Batcheller,  147  Mass.  335. 
«  Wolf  V.  Beaird,  123  111.  585 ;   McKibben  v.  Doyle,  173  Pa.  St.  679. 
V  Hoops  V.  Fitzgerald,  204  111.  325. 
•  Grymes  v.  Sanders,  93  U.  S.  55. 


248  Law  Jor  the  American  Farmer 

a  mistake  as  will  relieve  a  person  from  performing  his  con- 
tract even  if  such  fact  might  have  influenced  his  conduct 
had  he  known  it.^  Oral  testimony  is  received  to  prove  a 
mistake  of  facts  in  the  making  of  contracts.^  Ignorance  or 
mistake  of  law  is  not  enough  to  procure  the  annulment  of 
a  contract.^  A  mistake  due  to  ignorance  of  law  is  no 
ground  for  reforming  a  deed  founded  upon  it  except 
possibly  in  a  few  cases  of  peculiar  character/  nor,  unless 
there  are  other  circumstances,  for  reforming  any  written 
instrument.^  No  suit  can  be  maintained  to  recover  back 
money  paid  under  a  mere  mistake  of  law  ^  where  the  facts 
were  known  and  there  was  no  duress^  and  no  fraud  or 
deceit  employed.^  But  it  has  been  decided  in  one  case,^ 
that  the  maxim  that  ignorance  of  the  law  is  no  excuse  for 
not  performing  a  contract  does  not  apply  to  a  mistake  in 
the  law  of  another  state  than  the  one  in  which  the  person 
seeking  to  be  excused  has  his  domicile. 

^  Cleaveland   v.   Richardson,   supra. 

2  Ivinson  v.  Hutton,  98  U.  S.  79 ;  Walden  v.  Skinner,  101  id.  677 

'  Kleinaann  v.  Gieselmann,  114  Mo.  437. 

*  Hunt  V.  Rhodes,  1  Pet.  1. 

'  Snell  V.  Atlantic  Ins.  Co.,  98  U.  S.  85. 

«  Elliott  V.   Swartwout,   10  Pet.    137. 

'  Painter  v.  Polk  Co.,  81  Iowa,  242  ;  Phillips  v.  McConica,  50  Ohio  St.  1, 

8  Scott  V.   Ford,   45  Ore.   531. 

»  Morgan  v.  Bell,  3  Wash.  554. 


CHAPTER  XXII 

SALES 

§§  160-168 

§  160.     The  state  of  the  law  of  sales. 

There  is  no  subject  of  greater  importance  and  magnitude 
in  the  law  than  that  relating  to  the  change  of  ownership 
of  property  from  one  to  another  person  by  contract  of 
sale  and  delivery.  The  greatest  amount  of  litigation  with 
which  courts  have  to  deal  grows  out  of  disputes  over  the 
sale  and  delivery  of  goods  and  chattels.  The  questions 
that  have  arisen  and  that  are  still  constantly  coming  up 
are  not  only  numerous,  various,  and  weighty,  but  exceed- 
ingly puzzling.  The  law  of  sales  of  personal  property  has 
been  among  the  topics  most  frequently  considered  by  the 
courts  and  has  been  elucidated  or  clouded,  as  one  looks 
at  it,  by  a  great  variety  of  distinctions  and  refinements.^ 
The  courts  of  England  for  centuries  have  been  striving  to 
settle  the  law  by  which  sales  of  chattels  are  governed;  ^ 
and  they  have  not  yet  succeeded  in  doing  so.  The  law 
of  contracts  of  sale,  according  to  one  authority  of  good 
standing,^  is  "still  involved  in  much  confusion,  notwith- 

1  State  ex  rel  "Vilas  v.  Wharton,  117  Wis.  558, 
s  Halterline  v.  Rice,  62  Barb.  593. 
3  Shealy  v.  Edwards,  73  Ala.   175. 
249 


250  Law  for  the  American  Farmer 

standing  the  vast  resources  of  learning  expended  upon  it 
by  the  jurists  and  law  writers  of  the  past  century."  Were 
it  desirable  it  would  not  be  possible  to  do  more  than  sketch 
the  state  of  the  law  of  sales  respecting  a  few  topics  of 
special  interest  to  the  readers  here  addressed  and  aught 
further  would  not  be  useful. 

§  161.     The  essentials  of  a  sale. 

A  sale  has  been  defined  as  a  transfer  of  the  absolute  or 
general  property  in  a  thing  for  a  price  in  money  ^  or  other 
recompense  of  value.^  This,  in  substance,  is  Blackstone's 
definition.^  Other  authorities  have  defined  it  as  an  ex- 
ecuted contract  by  which  the  right  of  property  in  what  is 
sold  is  transferred  from  seller  to  buyer ,^  and,  as  ordinarily, 
a  transfer  from  seller  to  buyer  of  the  property  in  an  article 
for  a  consideration  paid  or  promised.^  The  essence  of  a 
sale  is  a  transfer  of  the  property  in  the  subject  of  it  from 
seller  to  buyer  in  consideration  of  a  price.^  A  price  is 
essential.''  No  contract  of  sale  is  perfect  without  an  agree- 
ment as  to  price.*  The  assent  of  both  buyer  and  seller 
is  necessary  to  make  a  sale  ^  and  mutuality  of  obligation 
is  also  essential.^"  The  elements  in  every  contract  of  sale 
are  persons  legally  competent  to  make  it,  an  agreement  to 

1  Foley  V.  Felrath,  98  Ala.   176. 

2  Woodward  v.  Soloman,  7  Ga.  246. 

3  2  Com.  447. 

*  Field  V.  Moore,  Hill  &  Den.  Supp.  418. 
»  Stephens  v.  Gifford,   137  Pa.  St.  219. 
«  Mclver  v.  Young  Hardware  Co.,  144  N.  C.  478. 
1  Fuller  V.  Bean,  34  N.  H.  290. 
8  State  V.  Asso.  Press,  159  Mo.  410. 
»  Ketchum  v.  Duncan,  96  U.  S.  659. 
»"  Brasliier  v.  Grata,  6  Wheat.  528. 


Sales  251 

sell,  a  meeting  of  minds  upon  the  subject  of  the  sale,  and  a 
mutual  assent  to  the  price  to  be  paid.^  The  specific  in- 
dividual thing  sold  must  be  agreed  upon  by  seller  and 
buyer.2  The  subject  of  the  sale  must  be  ascertained  and 
identified.  That  is  indispensable.^  It  must  be  certainly 
known  as  a  thing  distinct  from  its  kind.^  And  finally,  as  in 
every  contract,  there  must  be  a  consideration,^  but  then  the 
promise  of  the  buyer  to  pay  the  purchase  price  is  a 
good  consideration  for  the  covenant  of  the  seller  to  convey 
the  property.^  A  sale  is  distinguished  from  a  bailment  by 
the  absence  of  an  obligation  to  return  its  subjects 

§  162.     Executory  and  executed  contracts  of  sale. 

An  executory  contract  of  sale  is  an  agreement  to  sell, 
and  an  executed  contract  of  sale  is  a  completed  sale.  A 
sale  differs  from  an  agreement  to  sell  in  that  upon  a  sale  the 
title  to  the  thing  sold  passes  to  the  buyer,  while  upon  an 
agreement  to  sell  it  remains  in  the  seller.  This  is  the 
fundamental  difference.^  The  sale  does,  the  agreement 
to  sell  does  not,  transfer  the  ownership  of  the  property.^ 
In  many  cases  of  sales  it  is  a  very  nice  and  difficult  question 
to  determine  whether  or  not  the  title  has  passed.^*'  ^\Tien 
all  the  terms  of  a  sale  of  property  in  a  state  ready  for 

1  Gardner  v.  Lane,   12  Allen,  39. 

2  Murphy  v.  State,  1  Ind.  366. 

5  Field  V.  Moore,  supra. 

*  Blackwood  v.  Cutting  &  Packing  Co.,  76  Cal.  212. 

6  Tuttle  V.  Campbell,  74  Mich.  652. 

•  Rodman  v.  Robinson,  134  N.  C.  503. 
»  Sturm  V.  Boker,  150  U.  S.  312. 

»  Blackwood  v.  Cutting  &  Packing  Co.,  supra. 
»  Buskirk  Bros.  v.  Peck,  57  W.  Va.  360. 
»»  Olyphant  v.  Baker,  5  Denio,  379  ;  Graff  v.  Fitch,  58  111.  373. 


252  Law  J  or  the  American  Farmer 

delivery  and  clearly  specified  have  been  agreed  upon,  and 
the  bargain  has  been  struck  and  everything  the  seller 
was  to  do  has  been  done,  the  sale  is  absolute  and  as  be- 
tween seller  and  buyer  the  title  passes  without  either 
payment  of  the  price  or  actual  delivery  of  the  prop- 
erty,^ but  this  does  not  preclude  the  seller's  retention 
of  the  possession  of  the  property  until  the  price  is  paid.- 
If  the  sale  is  complete  in  all  its  parts  and  nothing  more  is 
to  be  done  to  ascertain  the  identity,  quality,  quantity, 
or  price  of  what  is  sold,  as  a  general  rule  the  title  vests  at 
once  in  the  buyer  by  virtue  of  the  contract  itself  and  be- 
fore either  payment  or  delivery,^  but  if  any  material  act 
remains  to  be  done  either  to  identify  what  is  sold,  fit  it 
for  delivery,  or  fix  its  price,  then,  as  a  general  thing,  the 
title  does  not  pass  until  it  is  done.'*  This  is  a  well  settled 
principle  ^  of  elementary  law.^  If  it  is  necessary  for  the 
seller  to  finish  the  property  sold  fit  for  use,  or  to  put  it  in 
merchantable  condition  or  a  deliverable  state  before  de- 
livering it  to  the  buyer  the  title  to  it  does  not  pass  from 
seller  to  buyer  until  everything  of  that  sort  has  been 
accomplished.'^  A  sale  is  incomplete  and  executory  as 
long  as  anything  remains  to  be  done  by  either  buyer  or 
seller  before  delivery  of  the  commodity  sold.^ 

1  Hatch  V.  Standard  Oil  Co.,  100  U.  S.  124. 

'  Ark.  Val.  Land  &  Cattle  Co.  v.  Mann,  130  U.  S.  69. 

3  Screws  v.  Roach,  22  Ala.  6,75. 

4  McFadden  v.  Henderson,  128  Ala.  221 ;   Priest  v.  Hodge^,  118  S.  W. 
Rep.  253  ;  Welch  v.  Spies,  103  Iowa,  389  ;  Sumner  v.  Hamlet,  12  Pick.  76. 

6  Hagins  v.  Combs,  102  Ky.  165. 
*  Caruthers  v.  McGarvey,  41  Cal.  15. 

'  Foster  v.  Ropes,  111  Mass.  10;  Schneider  v.  Westerman,  25  111.  514; 
McClung  V.  Kelley,  21  Iowa,  508. 
'  Foley  V.  Felrath,  supra. 


Sales  253 

§  163.     The  intention  of  the  parties. 

The  courts  attach  great  weight  to  the  intention  of  the 
parties  as  a  criterion  for  determining  whether  a  sale  is 
or  is  not  executory.  It  is  the  intention  of  seller  and  buyer 
as  gathered  from  their  contract  of  sale,  the  attending 
circumstances,  and  the  nature  and  situation  of  the  subject 
of  the  sale  that  is  decisive  in  all  ordinary  cases  of  whether 
the  sale  is  complete  or  only  executory.^  Whether  upon 
a  sale  of  personal  property  the  title  does  or  does  not  pass 
is  generally  a  question  of  the  intention  of  the  parties  to 
the  bargain.2  If  both  seller  and  buyer  intend  the  title 
to  the  property  sold  to  pass  from  the  one  to  the  other  and 
the  seller  delivers  the  property  into  the  possession  of  the 
buyer  then  the  ownership  of  it  is  transferred  and  the  sale 
is  an  executed  one  notwithstanding  the  quantity  is  still 
to  be  counted,  measured,  or  weighed  and  the  price  of  the 
whole  is  yet  to  be  computed.^ 

§  164.     Offers  and  acceptances. 

An  offer  to  sell  property  imposes  no  obligation  upon 
the  owner  until  it  is  accepted  according  to  its  terms.^ 
Such  an  offer  may  be  withdrawn  any  time  before  it  is 
accepted.^     To  make  the  offer  binding,  it  must  be  ac- 

1  Osborne  v.  Francis,  38  W.  Va.  312. 

*  Greene  v.  Lewis,  85  Ala.  221 ;  Lester  v.  East,  49  Ind.  588 ;  Levasseur 
V.  Gary  (Me.),  3  Atl.  R.  461. 

'  Shealy  v.  Edwards,  supra ;  Lassing  v.  James,  107  Gal.  348 ;  Riddle 
V.  Varnum,  20  Pick.  283 ;   Bass  v.  Walsh,  39  Mo.  192 

*  Minneapolis  &  St.  L.  R.  R.  v.  Golumbub  Rolling  Mills  Go.,  119  U.  S. 
149 ;   Tilley  v.  Gook  Gounty,  103  id.  155. 

6  Ryan  v.  U.  S.,  136  U.  S.  68;  Frank  v.  Stratford-Handcock,  13  Wyo. 
37. 


254  Law  for  the  American  Farmer 

cepted,  and  accepted  unconditionally.^  Any  qualification 
or  departure  from  the  terms  of  an  offer  to  sell  is  equivalent 
to  rejecting  it.^  The  acceptance  of  an  offer  before  it  is 
withdrawn  makes  a  contract,  no  matter  how  such  accep- 
tance is  communicated.^  An  offer  cannot  be  withdrawn 
after  it  has  been  accepted,  even  though  the  acceptance 
has  not  yet  reached  him  who  made  the  offer.'*  If  an  offer 
is  withdrawn  before  it  is  accepted,  there  can  be  no  contract, 
since  it  is  utterly  idle  to  accept  an  offer  after  it  has  been 
withdrawn.*  An  unconditional  and  positive  offer  to  buy  or 
sell  property  made  by  letter  and  accepted  the  same  way 
makes  an  absolute  contract  of  sale.^  It  is  the  same  when 
the  telegraph  is  used  instead  of  the  mails.''  A  complete 
contract  of  sale  may  be  made  by  telegraphic  dispatches.^ 
Upon  a  sale  of  an  article  to  be  selected  by  the  buyer  at  a 
certain  time  and  place,  if  the  buyer  does  not  appear  at 
the  agreed  time  and  place  to  make  the  selection,  the  seller 
is  at  liberty  if  he  chooses  to  do  so  to  treat  the  bargain  as 
at  an  end.^ 

165.     Sales  made  out  of  a  mass. 

It  is  an  elementary  principle  of  general  application  alike 
to  sales  and  exchanges  of  property  that  the  contract  is 

1  Weaver  v.  Burr,  31  W.  Va.  736. 

2  Can-  V.  Duval,  14  Pet.  77  ;  Eliason  v.  Henshaw,  4  Wheat.  225 ;   Min- 
neapolis &  St.  L.  R.  R.  V.  Columbus  Rolling  Mills  Co.,  supra. 

3  Perry  v.  Mt.  Hope  Iron  Co.,  15  R.  I.  380. 

4  Brauer  v.  Shaw,   1G8  Mass.   198. 
^  Lincoln  v.  Gay,  164  Mass.  537. 

«  Summers  v.  Hibbard,  153  111.  102. 

1  Perry  v.  Mt.  Hope  Iron  Co.,  and  Brauer  v.  Shaw,  supra. 

8  Utley  V.  Donaldson,  94  U.  S.  29. 

»  Warren  v.  Buckminster,  24  N.  H.  336. 


Sales  255 

executed  so  as  to  transfer  title  only  by  the  appropriation  of 
the  specific  goods  or  chattels  to  which  the  bargain  relates.^ 
Chancellor  Kent  has  declared  it  to  be  a  fundamental  prin- 
ciple everywhere  prevalent  that  if  goods  are  sold  by  num- 
ber, weight,  or  measure  the  sale  is  incomplete  until  they 
have  been  counted,  weighed,  or  measured  and  the  specific 
property  sold  has  been  separated  from  the  stock  and  identi- 
fied as  the  subject  of  the  sale.^  The  sale  is  incomplete 
until  the  property  sold  is  completely  separated  so  as  to  be 
distinguishable  from  the  bulk  or  mass  of  which  it  was  part.^ 
This  is  the  general  and  well-settled  rule  of  law.^  The  rule 
frequently  has  been  applied  to  sales  of  farm  products. 
Thus,  when  a  farmer  makes  a  sale  out  of  a  larger  quantity 
in  his  possession  of,  for  examples,  a  definite  number  of  tons 
or  other  quantity  of  hay,^  or  an  indefinite  quantity  of 
fodder,  a  part  of  several  stacks,^  or  a  certain  number  of 
bushels  of  corn,  part  of  the  contents  of  a  crib,^  or  a  sufficient 
quantity  of  unginned  cotton,  to  make  a  stated  number  of 
bales  of  average  weight,^  the  buyer  will  get  no  title  to  and 
will  not  become  the  owner  of  what  he  has  purchased  until 
it  has  been  counted,  weighed,  or  measured  out  of  and  set 
apart  from  the  rest  of  the  hay,  fodder,  corn,  or  cotton  so  as 

1  Cloke  V.  Shafroth,  137  111.  393. 

2  2  Comm.  496. 

3  Upham  V.  Dodd,  24  Ark.  545 ;  Dunn  v.  State,  82  Ga.  27 ;  Courtright 
V.  Leonard,  11  Iowa,  32. 

4  Block  V.  Maas,  65  Ala.  211 ;   Harwick  v.  Weddington,  73  Iowa,  300. 

*  Stone  V.  Peacock,  35  Me.  385 ;    Lawry  v.  Ellis,  85  id.  500 ;    Holmes 
V.  Bailey,  16  Neb.  300 ;    Messer  v.  Woodman,  22  N.  H.  172. 

*  Fagan  v.  Faulkner,  5  Ark.  161. 

T  Wood  V.  Roach,  52  111.  App.  388 ;  Scott  v.  King,  12  Ind.  203  ;   Keeler 
V.  Goodwin,  111  Mass.  490;    Greshara  v.  Bryan,  103  Ala.  629. 
»  Baldwin  v.  McKay,  41  Miss.  358. 


256  Law  for  the  American  Farmer 

to  be  recognized  and  known  definitely  as  the  subject  of  the 
sale.  An  agreement  by  the  owner  of  a  quantity  of  husked 
corn  lying  in  heaps  in  his  fields  to  sell  enough  of  it  at  a  stated 
price  the  hundred  to  pay  a  note  of  his  held  by  the  buyer, 
both  parties  to  join  in  hauling  the  corn  to  the  buyer's  crib, 
neither  transfers  the  ownership  of  any  of  the  corn  nor  ex- 
tinguishes the  note  so  long  as  the  corn  lies  undisturbed  in 
the  heaps. ^  If,  however,  a  certain  quantity  of  corn  greater 
than  the  contents  of  a  single  crib  is  sold  to  be  taken  from 
two  cribs  upon  an  agreement  that  one  of  them  is  to  be 
turned  over  unopened  to  the  buyer  the  title  to  one  of  the 
cribs  at  least,  it  has  been  held,  will  pass  at  once  to  the 
buyer,  if  in  other  respects  the  sale  is  all  complete.^ 

§  166.     The  ^'American"  doctrine,  so-called. 

The  general  rule  that  the  title  to  property  sold  out  of  a 
mass  will  not  pass  from  seller  to  buyer  until  it  is  separated 
from  the  bulk  of  which  it  is  a  part  is  held  by  a  number  of 
strong  courts  in  several  states  to  be  subject  to  one  very 
important  exception.  The  decisions  of  these  courts  upon 
the  question  have  given  rise  to  what  has  become  known  as 
the  "American"  doctrine  because  it  is  opposed  to  the  de- 
cisions of  pretty  much  all  the  courts  in  England.  That 
doctrine,  briefly  stated,  is  that  when  there  is  a  sale  of  but 
part  of  a  mass  running  perfectly  uniform  throughout,  in 
every  respect  so  that  each  particle  is  exactly  like  every 
other  particle,  then  if  buyer  and  seller  so  intend  and  so 
agree  the  title  to  the  portion  sold  may  pass  from  the  one 
to  the  other  without  separating  it  from  the  mass.     This 

'  Caruthers  v.  McGarvey,  41  Cal.  15. 
'  Welch  V.  Spies,  supra. 


Sales  257 

doctrine  will  apply  to  sales  of  a  certain  number  of  gallons 
of  oil  out  of  a  tank,  or  of  whisky  out  of  a  cask,  a  certain 
number  of  bushels  of  wheat,  corn,  oats,  or  other  grains 
out  of  a  granary  or  elevator,  or  a  certain  number  of  tons 
of  coal  out  of  a  heap  all  of  the  same  kind  and  size.  The 
reason  given  for  this  doctrine  is  that  it  is  utterly  indifferent 
both  to  buyer  and  seller  which  part  of  the  mass  is  taken 
or  left  or  which  one  takes  it.  This  doctrine  has  been 
accepted  and  applied  in  New  York/  Connecticut,^  Min- 
nesota,^ Missouri,^  and  several  other  states.  Thus,  it  has 
been  held  in  Maine,  that  if  the  buyer  of  a  certain  number 
of  bushels  of  com  out  of  a  larger  quantity  kept  by  the 
seller  in  bulk  pays  for  his  purchase  and  from  time  to  time 
afterwards  with  the  seller's  consent  carries  away  part  of 
what  he  bought,  the  title  to  all  he  purchases  passes  to  him 
at  once  without  any  separation  of  it  from  the  mass.^  The 
Minnesota  Supreme  Court  has  decided  that  the  title  passes 
to  the  buyer  of  a  definite  quantity  of  seed  wheat  to  be 
taken  out  of  a  bin  that  contains  a  larger  amount  all  of  the 
same  kind  and  value  when  the  purchaser  is  at  Uberty  to 
remove  the  part  he  bought  whenever  he  wishes  to  do  so.^ 
And  it  has  been  decided  in  Kansas  that  one  who  buys  and 
pays  for  a  number  of  plants  out  of  a  greater  number  all 
tied  together  in  bundles  containing  the  same  number  in 
each  and  all  of  the  same  kind,  quahty,  and  value  may 

>  Kimberly  v.  Patchin,   19  N.  Y.  330. 

*  Chapman  v.  Shepard,  39  Conn.  413. 

'  Fishback  v.  Van  Duseu,  33  Minn.  Ill;    Mackellar  v.  Pillsbury,  48 
Minn.  396. 

*  Kaufmann  v.  Schilling,  58  Mo.  218. 
6  Waldron  v.  Chase,  37  Me.  415. 

«  Nash  V.  Brewster,  39  Minn.  530. 


258  Law  for  the  American  Farmer 

recover  from  a  third  person  to  whom  the  seller  afterwards 
transferred  the  entire  lot  with  notice  of  the  transaction 
but  without  separating  the  plants  sold,  damages  for 
conversion  upon  his  refusal  to  deliver  the  plants  on 
demand.^ 

§  167.     The  wiser  'practice. 

The  American  doctrine  is  of  great  value  to  lawyers  in 
affording  ground  for  contending  in  a  case  to  which  it  ap- 
plies where  there  has  been  no  actual  breaking  of  bulk  that 
the  sale  of  a  part  passed  title  to  the  buyer;  but  when  a 
farmer  is  actually  selling  his  wheat,  corn,  or  other  grains, 
his  potatoes,  or  his  apples,  he  will  be  wise  to  make  sure 
that  the  title  passes  to  the  buyer  upon  the  conclusion  of 
the  bargain.  This  he  can  do  whether  the  American  doc- 
trine is  sound  or  unsound  by  actually  measuring  out  the 
quantity  sold  and  setting  it  apart  by  itself  distinctly 
labeled,  ready  for  actual  delivery.  The  importance  of  the 
transfer  of  title  in  the  law  of  sales  is  very  great  because  the 
risk  of  loss  goes  uith  the  title.  If  goods  or  chattels  sold  are 
destroyed  or  injured  by  flood  or  fire,  or  otherwise  lost  or 
damaged  by  accident  before  the  buyer  removes  them  and 
while  they  remain  in  the  seller's  possession,  the  buyer 
suffers  if  the  title  has  passed,  and  if  it  has  not  passed 
the  seller  bears  the  loss.  In  the  one  case  the  buyer  is 
bound  to  pay  the  purchase  price,  in  the  other,  the  seller 
cannot  collect  it.  Again,  property  sold  and  left  in  the 
possession  of  the  seller  is  liable  if  the  title  has  not  passed 
to  the  buyer  to  seizure  upon  legal  process  for  the  seller's 
debts. 

1  Kingman  v.  Holmquist,  36  Kan.  735. 


Sales  259 

§  168.     Sales  of  indefinite  quantities. 

A  contract  to  sell  and  deliver  about  a  certain  number  of 
tons,  bushels,  or  feet  of  a  particular  commodity  allows  a 
margin  in  performance  for  a  reasonable  excess  or  deficit 
of  the  stated  quantity,^  The  use  of  the  word  "about"  in 
such  a  sale  means  not  far  from  the  stated  quantity.^  When 
the  words  "more  or  less"  or  their  equivalent  are  used  in 
good  faith  in  contracts  and  conveyances  they  qualify  the 
quantity  with  which  they  are  associated  so  that  neither 
party  can  gain  or  lose  by  the  surplus  or  deficiency;^  that 
is,  provided  the  discrepancy  is  not  too  great.  The  varia- 
tion from  the  quantity  named  must  be  unimportant  in  com- 
parison. The  use  of  the  words  "about"  or  "more  or  less" 
in  a  contract  for  a  sale  of  grain  will  not  enable  the  seller 
to  force  upon  the  buyer  a  very  great  excess  over  the  stated 
ciuantity  ;  the  buyer,  for  example,  of  "  about "  three  hundred 
quarters  of  rye  cannot  be  compelled  to  take  three  hundred 
and  fifty  quarters.*  Again,  a  tender  of  one  hundred  and 
seventy-eight  beasts  in  fulfilling  a  contract  to  deliver  two 
hundred  and  sixty-two  head  of  cattle  more  or  less  is  not 
a  good  offer  of  performance.^  A  deficiency  of  seven  thou- 
sand feet  in  a  contract  for  the  sale  of  twenty-three  thousand 
feet  of  lumber  is  too  large  to  be  covered  by  the  phrase 
"  more  or  less  "  ;  ^  and  an  excess  of  nineteen  thousand 
two  hundred  feet  of  logs  upon  an  agreement  to  deliver 
rafts  of  pine  logs   containing   three   hundred   and  fifty 

1  Salmon  v.  Boy  kin,  66  Md.  541. 

'  Indianapolis  Cabinet  Co.  v.  Herrman,  7  lud.  App.  462. 

3  Jones  V.  Plater,  2  Gill,   125. 

*  Cross  V.  Eglin,  2  Barn  &  Adol.  106. 
»  Tilden  v.  Rosenthal,  41   111.  385. 

•  Creightou  v.  Comstock,  27  Ohio  St.  548. 


260  Law  for  the  American  Farmer 

thousand  to  four  hundred  thousand  feet  more  or  less  is 
too  much.^  One  who  has  contracted  to  cut  and  take  away 
about  two  and  three  quarters  miUions  feet  more  or  less  of 
dead  and  fallen  timber  upon  a  certain  tract  of  land  can  be 
neither  compelled  nor  permitted  to  cut  and  remove  from 
the  designated  tract  seventeen  millions  of  feet.^  An 
agreement  of  a  purchaser  to  accept  from  the  seller  from 
two  to  six  tons  of  the  commodity  purchased  is  an  agree- 
ment to  accept  any  number  of  tons  between  two  and  six 
that  the  seller  tenders  in  performance.^ 

»  Patterson  v.   Judd,   27   Mo.   563. 

2  Pine  River  Logging  Co.  v.  U.  S.,  186  U.  S.  279. 

»  Wheeler  v.  New  Brunswick  &  C.  R.  R.,  115  U.  S.  29. 


CHAPTER  XXIII 

COMPLETING    SALES 

§§  169-175 

§  169.     Delivery. 

A  sale  of  chattels  or  goods  is  completed  by  an  actual  or 
a  symbolical  delivery  of  the  thing  sold.^  The  word  "  de- 
livery "  is  used  in  law  books  in  two  different  senses.  It  is 
often  used  to  denote  the  change  in  possession  of  a  chattel 
transferred  and  sometimes  to  denote  a  change  of  ownership 
of  the  chattel  which  may  take  place  without  a  change  of 
possession.  It  usually  means  a  change  of  possession  but 
often  a  change  of  title.^  The  delivery  of  a  chattel  has,  of 
necessity,  three  features,  viz.  a  chattel  to  be  delivered,  a 
person  to  deliver  it,  and  a  person  to  receive  the  delivery.^ 
Both  payment  and  delivery  must  concur  to  transfer  the 
ownership  and  complete  the  sale  of  property  sold  for  cash 
on  delivery.*  The  dehvery  of  goods  sold  is  an  overt  deal- 
ing with  them  by  the  seller  which  puts  them  in  a  posses- 
sion adverse  to  him.^  There  are  two  kinds  of  delivery ;  an 
actual  delivery  and  an  implied,  constructive,  or  symboHcal 

>  Stephens  v.  Gifford,  137  Pa.  St.  219. 
2  Bloyd  V.  Pollock,  27  W.  Va.  75. 
»  Wahpeton  Nat.  Bank  v.  Hanberg,  10  N.  Dak.  383. 
*  Masoner  v.  Bell,  20  Okla.  618. 
6  Smith  V.  Edwards,   1.56  Mass.  221. 

261 


262  Law  for  the  American  Farmer 

delivery.^  An  actual  delivery  needs  no  explanation ;  it  is, 
of  course,  an  absolute  surrender  by  the  seller  and  a  taking 
by  the  buyer  of  possession  of  the  property  sold.  An  im- 
plied or  constructive  delivery  of  property  sold  is  such  a 
delivery  short  of  an  actual  one  as  the  nature  of  the  case 
permits.^  If  property  is  so  situated  that  the  buyer  can 
take  possession  of  it  at  his  will  and  pleasure  and  has  a 
right  to  do  so,  it  is  constructively  delivered.^ 

§  170.     The  requisites  of  a  delivery. 

No  particular  act  or  formal  ceremony  is  necessary  to 
make  a  legal  delivery  of  property  sold.  Any  act  done  with 
the  intention  to  transfer  the  ownership  and  which  changes 
the  dominion  over  the  property  from  seller  to  buyer  is  a 
delivery.^  What  will  constitute  a  delivery  of  personal 
property  sold  depends  upon  the  character  of  the  property 
and  the  circumstances  of  the  particular  transaction.^  The 
nature  and  situation  of  the  property  determines  what  will 
constitute  a  delivery  of  it,  and  actual  removal  of  it  from  the 
place  where  it  lies  is  never  essential.^  This  is  especially 
the  case  when  the  subject  of  the  sale  is  a  large  quantity  of 
bulky  and  ponderous  articles  lying  apart  by  themselves 
and  easily  identifiable.''  The  constructive  or  symbolical 
delivery  of  ponderous  or  bulky  goods  is  equally  as  effective 
as  an  actual  delivery  to  pass  the  title.^     If  the  situation 

»  Cowgill  V.  Ford,  2  Houst.  (Del.)  164. 

*  Shindler  v.  Houston,  1  Denio,  48. 
»  WUliams  v.  Lerch,  56  Cal.  330. 

*  Dodge  V.  Jones,  7  Mont.  121 ;  Cady  v.  Zimmerman,  20  id.  225. 
'  Williams  v.  Lerch,  supra. 

«  Little  Rock  &  Ft.  S.  R.  R.  v.  Page,  35  Ark.  304. 

^  Calkins  v.  Lockwood,  17  Conn.  154  ;  Jewett  v.  Warren,  12  Mass.  300. 

«  Houdlctte  V.  Tallman,  14  Me.  400 ;  Hall  v.  Richardson,  16  Md.  {j96. 


Completing  Sales  263 

and  character  of  personal  property  is  such  that  it  is  in- 
capable of  an  actual  delivery  at  the  time  it  is  sold  it  may  be 
delivered  symbolically  and  a  bill  of  sale  or  some  other 
evidence  of  transfer  of  it  will  effectually  pass  title  to  the 
purchaser.^  Thus,  the  contents  of  a  warehouse,  trunk, 
chest,  or  other  receptacle  are  constructively  delivered  by 
handing  over  the  keys.^  One  who  buys  at  auction  a 
wagon  may  be  held  for  the  price  when  the  wagon  is  pointed 
out  at  the  time  it  is  put  up  for  sale,  and  he  is  told  when 
he  bids  it  off  that  he  can  take  it  away,  although  he  does 
not  take  possession  of  or  remove  it.^ 

I  171.     The  sale  and  delivery  of  live-stock. 

If  upon  a  sale  of  neat  cattle  the  seller  in  the  presence  of  a 
witness  points  out  to  the  buyer  the  animals  sold,  saying  at 
the  same  time,  "I  dehver  you  this  stock  free  of  all  in- 
cumbrance," and  receives  the  purchase  price,  the  sale  is 
complete,  there  is  a  good  delivery,  and  a  transfer  of  title.* 
If  a  definite  number  less  than  an  entire  herd,  flock,  or  drove 
of  animals  are  sold,  the  particular  beasts  that  the  buyer  is 
to  have  must  be  sorted  out  and  separated  from  the  rest  of 
their  kind  before  the  title  will  pass  to  the  buyer/  It  is 
obvious  that  the  so-called  ''American"  doctrine  cannot  ap- 
ply to  live-stock,  since  no  two  animals  are  precisely  alike. 
A  sale  of  five  hundred  head  of  cattle  out  of  a  herd  running 
at  large  on  the  seller's  range  passes  no  title  until  the 

Gibson  v.  Stevens,  8  How.  U.  S.  384. 
«  Ellis  V.  Secor,  31  Mich.  185 ;  Jones  v.  Brown,  34  N.  H.  445 ;  Westerlo 
V.  De  Witt,  36  N.  Y.  341 ;  Thomas's  Admr.  v.  Lewis,  89  Va.  1. 
3  Boiler  V.  Block,  19  Ark.  566. 
*  Goodwin  v.  Goodwin,  90  Me.  23. 
6  Stafford  v.   Anders,   8  Fla.   34. 


264  Law  for  the  American  Farmer 

beasts  are  rounded  up,  picked  out,  and  corralled  apart, 
or  marked  in  some  way  to  identify  them  from  the  rest 
of  the  herd ;  ^  but  when  the  animals  have  been  selected 
and  marked  with  the  purchaser's  own  brand  the  title  to 
them  passes,  although  afterwards  they  are  allowed  to  re- 
turn with  the  herd  to  the  range  to  graze.^  On  a  sale  of 
lambs,  a  part  of  a  flock,  the  ownership  passes  to  the  buyer 
when  the  particular  animals  are  selected,  paid  for,  and 
marked  with  his  brand.^  One  buying  at  a  stated  price  the 
head  an  uncounted  flock  of  sheep  less  three  particular 
animals  kept  out  and  especially  identified,  who  pays  a 
part  of  the  price  and  agrees  to  return  on  a  future  clay  and 
pay  the  balance  and  take  away  the  animals,  at  once  be- 
comes the  owner  of  the  sheep  and  their  fleeces,  and  if  the 
seller  after^vards  shears  them  and  takes  the  wool,  he  must 
make  its  value  good  to  the  purchaser.*  On  the  sale  of  a 
large  flock  of  sheep  estimated  at  a  certain  number  of 
animals  where  it  is  found  when  they  come  to  be  delivered 
that  several  are  missing,  having  strayed  away,  the  de- 
livery and  acceptance  of  the  rest  of  the  flock  and  the  search 
for  those  astray  carries  title  to  the  missing  animals.^ 
When  there  is  a  sale  of  live-stock  which  the  seller  is  to 
deliver  on  a  future  day  and  keep  and  feed  in  tlie  meantime 
at  a  price  calculated  upon  the  weight  of  the  animals  at  the 
time  of  delivery  the  contract  is  executory  and  does  not 
transfer  title.^     If  cattle  are  sold  by  weight  under  an  agree- 

1  McLaughlin  v.  Piatti,   27  Cal.  451. 

2  Walden  v.  Mvirdock,  23  Cal.  540. 

«  Cady  V.  Zimmerman..  20  Mont.  225. 

*  Groat  V.  Gilc,  51  N.  Y.  431. 

6  Kinney  r.  First  Nat.  Bank,  10  Wyo.  116. 

*  Restad  V.  Engemoen,  65  Minn.  148. 


Completing  Sales  265 

ment  to  weigh  them  at  a  certain  place  and  on  specified 
scales  no  title  passes  until  the  animals  are  weighed  at  that 
place  and  on  those  scales.^  Title  to  beeves  bought  docs 
not  pass  to  the  buyer  so  as  to  subject  them  to  his  debts 
when  they  are  sold  under  an  agreement  that  he  is  to 
slaughter  them  and  pay  a  price  computed  according  to 
the  weight  of  the  quarters  of  dressed  meat  until  the  animals 
are  killed  and  dressed.^  The  title  of  a  cow  sold  by  live 
weight  to  be  paid  for  when  taken  away  passes  to  the  buyer 
when  the  beast  is  selected  from  kine  in  the  pasture  and 
roped  by  the  buyer  to  a  tree  in  an  adjoining  field,  although 
the  buyer  with  the  seller's  cons€'nt  leaves  her  for  a  time 
purposing  to  return,  slaughter  her,  and  pay  for  the  dressed 
meat.^ 

§  172.     Delivery  of  warehouse  receipts. 

Transferring  a  warehouse  receipt  is  a  common  and  well 
understood  method  of  delivering  personal  property  stored 
in  a  warehouse/  The  delivery  of  a  warehouse  receipt  is  a 
good  symbolical  or  constructive  delivery  of  the  property  it 
describes.^  An  offer  to  transfer  warehouse  receipts  for  five 
thousand  bushels  of  grain  sold  is  a  good  offer  to  deliver  the 
grain  if  no  specific  objection  is  made  to  that  method  of 
delivery.^  The  title  passes  to  the  purchaser  by  the  sale 
at  a  stated  price  the  bushel  of  a  definite  number  of  bushels 

»  Nesbit  V.  Burry,  25  Pa.  St.  208. 

*  Ward  V.  Shaw,  7  Wend.  404. 

3  Riley  v.  Du  Bois,  14  111.  App.  236. 

*  Shepard  v.  King,  96  Ga.  81 ;  Broadwell  v.  Howard,  77  111.  305. 

'  Newcomb  v.  Cabell,  10  Bush,  460 ;  Nat.  Exch.  Bank  v.  Wilder,  34 
Minn.  149;    Collins  v.  Wayne  Lumber  Co.,  128  Mo.  451. 

*  McPherson  v.  Gale,  40  III.  368. 


266  Law  for  the  American  Farmer 

of  corn  lying  in  the  seller's  cribs  and  warehouse  by  the 
giving  of  a  receipted  bill  for  the  purchase  and  a  warehouse- 
man's certificate  for  delivering  the  corn  at  stated  dates  to  a 
carrier  free  on  board. ^  It  seems  to  be  tacitly  admitted 
that  the  delivery  of  a  warehouse  receipt  representing,  for 
instance,  a  certain  number  of  bushels  of  wheat,  a  part  of 
a  great  quantity  in  a  grain  elevator,  operates  as  a  construc- 
tive delivery  and  transfer  of  title  to  the  wheat  for  which  it 
stands.  Be  that  as  it  may,  it  has  been  decided  that  where 
there  is  a  sale  of  a  part  of  a  commodity  stored  in  bulk  in 
a  warehouse,  the  units  of  which  do  not  run  uniform,  the 
transfer  of  a  warehouse  receipt  for  a  certain  number  of 
those  units  not  particularly  described  %vill  not,  standing 
alone,  operate  to  transfer  title.  For  example,  a  warehouse 
receipt  simply  for  a  certain  number  of  bales  of  cotton 
without  particularizing  when  there  are  a  much  greater 
number  of  bales  in  the  warehouse  all  differing  in  weight, 
size,  and  the  quality  of  cotton  in  them,  does  not  of  itself 
when  transferred  pass  title  to  the  cotton  sold.^ 

§  173.     Delivery  to  common  carriers. 

A  delivery  to  a  carrier  designated  by  the  purchaser  of 
the  property  sold  is  a  delivery  to  the  buyer,^  and  if  a  buyer 
of  property  directs  the  seller  to  ship  it  to  him  by  a  common 
carrier  generally,  a  delivery  to  any  common  carrier  com- 
pletes the  sale.'*  The  delivery  to  a  common  carrier  of 
property  sold  to  be  delivered  to  the  buyer  is  a  delivery 

»  Barker  v.  Bushnell,  75  111.  220. 

»  Pierson  v.  Metropolitan  Bank,  106  La.  298. 

'  Templeton  v.  Equitable  M'fg.  Co.,  79  Ark.  456. 

«  Schaff  V.  Meyer,  133  Mo.  428. 


Completing  Sales  267 

to  the  buyer  and  passes  the  title  subject  to  the  seller's 
right  in  a  proper  case  of  stoppage  while  it  is  in  transit.^ 
The  seller  of  property  who  ships  it  to  the  purchaser  by  a 
carrier  has  a  right  if  the  purchaser  becomes  bankrupt  or 
insolvent  to  stop  delivery  and  have  it  returned  to  him  any 
time  before  it  goes  into  the  buyer's  possession.  This 
right  is  called  the  right  of  stoppage  in  transitu.  It  was 
first  recognized  and  enforced  in  England  in  1690  in  the 
case  of  Wiseman  v.  Vandeputt,  2.  Vem.  203  and  in  a  court 
of  equity. 2  If  the  seller  of  property  engages  to  deliver 
it  to  the  buj'er  at  a  place  distant  from  where  the  sale  takes 
place,  the  carrier  to  which  he  intrusts  its  transportation 
is  his  agent  to  make  the  delivery  and  not  the  buyer's  agent 
to  receive  the  property.^  And  this  is  the  case  also  when 
upon  the  sale  the  seller  is  to  deliver  the  property  and 
nothing  is  said  about  the  mode  of  delivery.*  If  the  title 
to  property  sold  passes  according  to  the  contract  of  sale 
from  seller  to  buyer  when  it  is  delivered  to  a  common  car- 
rier for  transportation  and  the  property  is  lost  in  transit,  the 
loss  falls  upon  the  buyer ;  but  if  the  agreement  is  that  the 
property  is  to  be  delivered  to  the  buyer  at  the  end  of  the 
journey  so  that  the  title  is  not  to  pass  until  the  consignment 
reaches  the  consignee,  then  a  loss  occurring  before  that 
falls  upon  the  seller.^  That  is,  loss  as  usual  follows  title. 
When  a  seller  of  property  undertakes  to  deliver  it  "f.o.b." 
cars  at  a  place  of  shipment  his  engagement  is  to  put  it 

1  Kelsea  v.  Ramsey  &  G.  M'f'g.  Co.,  55  N.  J.  L.  320 ;  State  v.  Cairns, 
64  Kan.  782  ;  Neimeyer  Lum.  Co.  v.  Burlington  &  M.  R.  R.,  54  Neb.  321. 

2  O'Brien  v.  Norris,  16  Md.  122. 

'  Templeton  v.  Equitable  M'f'g.  Co.,  supra. 

*  Pierson  v.  Crooks,  115  N.  Y.  539. 

*  Main  v.  Jarrett,  S3  Ark.  426. 


268  Law  for  the  American  Farmer 

free  on  board;  that  is,  deliver  it  to  the  carrier  at  the  desig- 
nated point  without  any  expense  to  or  assistance  from  the 
buyer.^ 

§  174.     Effect  oj  buyer's  accepting  the  property. 

If  there  is  neither  fraud  nor  a  warranty  in  selling  prop- 
erty the  buyer  who  receives  and  retains  the  property  sold  is 
deemed  to  have  waived  his  right  to  object. ^  When  wheat 
of  a  specified  grade  and  quality  is  sold  and  the  buyer  after 
inspecting,  or  a  fair  opportunity  to  inspect,  accepts  wheat 
tendered  by  the  seller  in  performance  of  the  contract,  he  is 
precluded  from  denying  that  the  contract  is  satisfied.^ 
The  delivery  and  acceptance  of  a  part  of  a  commodity  sold 
does  not  end  the  contract,  unless  both  parties  so  agree. 
It  does  not  entitle  the  buyer  to  refuse  to  take  any  more,* 
nor,  of  course,  the  seller  to  refuse  to  deliver  the  rest.  The 
buyer  who  accepts  goods  or  chattels  purchased  by  him 
long  after  the  time  stipulated  for  delivering  them  waives 
any  right  to  rescind  the  sale  and  any  defense  to  the  pay- 
ment of  the  price,  but,  it  is  held  in  several  jurisdictions, 
he  retains  his  right  to  recover  from  the  seller  any  damages 
he  has  sustained  by  the  failure  to  deliver  his  purchase  on 
time.^  Thus,  when  a  contract  of  sale  of  oranges  requires 
as  one  of  its  essential  elements  that  the  fruit  be  shipped 
before  a  stated  date,  the  acceptance  by  the  purchaser  of  a 
shipment  made  after  the  stipulated  time  is  no  waiver  of  his 

1  Vogt  V.  Shienebeck,  100  N.  W.  Rep.  820. 
»  Miller  v.  Tiffany,  1  Wall.  298. 
'  Jones  V.  McEwan,  91  Ky.  373. 
*  Moore  v.  U.  S.,  196  U.  S.  157. 

»  Johnson  v.  No.  Balto.  Bottle  Glass  Co.,  7  L.  R.  A.  (N.  S.)  1114; 
Crocker-Wheeler  Co.  v.  Varick  Realty  Co.,  104  App.  Div.  568. 


Completing  Sales  269 

right  to  damages  due  to  the  delay. ^  This  rule  is  not 
adopted  everywhere.  Some  courts  hold  that  the  accept- 
ance of  purchased  property  unduly  delayed  in  delivery 
must  be  deemed  a  com.plete  satisfaction  of  the  contract  of 
sale  and  an  extinction  of  all  claims  for  damages.  Others 
hold  that  such  acceptance  is  presumptive  evidence  of  a 
waiver  of  claims  for  damages  from  delay  but  that  the  buyer 
may  rebut  the  presumption  by  stronger  controverting 
proof.  Goods  sold  and  delivered  must  be  paid  for  by  one 
who  intelligently  accepts  and  uses  them  even  though  he 
did  not  order  them ;  ^  but  no  one  can  be  compelled  against 
his  will  to  buy  property,  and  no  trick  or  conspiracy  of  a 
seller  with  another's  agent  to  put  property  into  the  other's 
possession  will  make  a  sale  of  it  to  the  principal.^ 

§  175.     Remedy  when  buyer  refuses  to  accept  the  property. 

The  buyer  of  a  particular  article  cannot  be  compelled 
to  take  another  in  its  place  even  though  the  offered  article 
is  just  like  the  one  sold.^  In  New  York,  and  some  other 
states,  one  who  sells  personal  property  which  the  buyer 
refuses  to  take  has  his  choice  of  three  courses :  (1)  He 
may  keep  or  store  the  property  subject  to  call  by  the  pur- 
chaser and  sue  the  buyer  for  the  entire  purchase  price ;  or, 
(2)  he  may  sell  the  property  over  again  and  recover  from 
the  first  purchaser  the  difference  between  the  new  and  the 
old  price;  or,  (3)  he  may  keep  the  property  for  himself 
and  sue  the  purchaser  for  the  difference  between  its  value 

1  Redlands  Orange  Growers'  Asso.  v.  Gorman,  161  Mo.  203. 

s  Cincinnati  S.  L.  Gas  Ilium.  Co.  v.  West.  S.  L.  Co.,  152  U.  S.  200. 

3  Schutz  V.  Jordan,  141  U.  S.  213. 

*  Columbian  Iron  W'ks  &  Dry  Dock  Co.  v.  Douglas,  84  Md.  44. 


270  Law  for  the  American  Farmer 

and  the  price  the  purchaser  agreed  to  pay  for  it.^  In 
Maine,  an  action  for  the  price  of  goods  sold  which  the 
buyer  has  refused  to  take  when  tendered  cannot  be  main- 
tained. The  seller's  remedy  in  that  state  is  limited  to  a 
suit  for  damages  for  the  breach  of  the  contract  of  sale.^ 
This  appears  to  be  the  rule  in  the  state  of  Minnesota  as 
well.^ 

1  Moore  v.  Potter,  155  N.  Y.  481 ;   Ackerman  v.  Rubens,  167  id.  405. 

2  Greenleaf  v.  Gallagher,  93  Me.  549. 

3  McCormick  Harvest.  Mach.  Co.  v.  Balfany,  78  Minn.  370. 


CHAPTER  XXIV 

WARRANTY 

§§  176-184 

§  176.     Express  and  implied  warranties  in  sales. 

A  warranty  in  a  sale  of  personal  property  is  a  contract 
by  the  seller  that  the  article  sold  is  what  he  states  and 
represents  it  to  be  in  respect  of  its  quality  and  condition.* 
It  is  always  a  representation  although  every  representa- 
tion is  not  a  warranty.^  No  particular  form  of  words  is 
necessary  in  order  to  make  a  warranty.^  Any  assertion  by 
the  seller  concerning  the  quality  of  the  subject  of  the  sale 
which  induces  the  buyer  to  purchase  and  on  which  he  relies 
in  buying  will  amount  to  a  warranty.*  These  are  express 
warranties,  but  the  law  also  recognizes  certain  implied  ones. 
For  example,  the  offer  of  personal  property  for  sale  by  one 
in  possession  of  it  is  an  implied  warranty  of  title.^  If  an 
article  sold  is  expressly  warranted  in  some  respects,  no 
warranty  in  other  respects  may  be  implied.^     If  goods  are 

1  Pemberton  v.   Dean,   88   Minn.   60. 
«  Matteson  v.  Rice,   116  Wis.  328. 
'  Buckman  v.  Haney,  11  Ark.  339. 

*  Smith  V.  Holbrook,  1  Buff.  Super.  Ct.  (Sheld.)  474. 

»  Boyd  V.  Bopst.,  2  Dall.  91 ;   Otis  v.  CuUom,  92  U.  S.  44T. 

•  Reeves  v.  Byers,  155  Ind.  535. 

271 


272  Law  for  the  American  Farmer 

purchased  for  a  particular  purpose  of  which  the  seller  is 
aware  and  the  buyer  has  no  opportunity  to  inspect  them 
before  delivery,  there  is  an  implied  warranty  by  the  seller 
that  they  are  reasonably  fit  for  that  purpose.^  If  one 
applies  to  a  manufacturer  to  buy  an  article  made  by  him 
and  tells  him  the  use  for  which  he  wants  it  and  relies  upon 
the  seller's  judgment  to  furnish  him  such  an  article  as  will 
answer  his  purpose,  the  seller  by  implication  warrants  the 
article  he  sells  to  be  suitable  and  reasonably  fit  for  the  use 
to  which  the  buyer  intends  to  put  it.  This  principle  has 
been  applied  to  the  sale  of  a  corn-cutter,^  a  potato  digger,^ 
a  threshing  machine,''  a  feeder  for  a  threshing  machine,^ 
a  harvester,^  and  binders^  But  although  a  purchaser 
may  desire  an  article  for  a  particular  purpose  and  go  to 
a  dealer  to  buy  it  and  ask  for  an  article  supposed  to  have 
been  made  for  such  a  purpose  by  its  particular  and  dis- 
tinctive name  without  telling  the  dealer  for  what  he  wants 
it  for,  no  warranty  that  it  is  fit  for  the  desired  use  is  im- 
plied.* And  this  is  so  even  if  the  dealer  guesses  the  purpose 
for  which  the  buyer  intends  to  use  the  article.^  Of  course, 
if  the  seller  is  w^holly  ignorant  of  the  buyer's  purpose  in  pur- 
chasing, he  cannot  be  held  impliedly  to  warrant  the  thing 

J  Dushane  v.  Benedict,   120  U.  S.  630. 

2  Alpha  Checkrower  Co.  v.  Bradley,  105  Iowa,  537. 

3  Hallock  V.  Cutler,  71  111.  App.  471. 

4  Parsons  Band  Cutter  &  Self-Feed.  Co.  v.  Mallinger,  122  Iowa,  703. 
'  Ferguson  Impl.  Co.  v.  Parmer,  128  Mo.  App.  300. 

«  Aultman  v.  Hunter,  82  Mo.  App.  632. 

'  Creasy  v.  Gray,  88  Mo.  App.  4.54 ;  D.  M.  Osborne  &  Co.  v.  Walley, 
8  Pa.  Super.  Ct.  193. 

«  Davis  Calyx  Drill  Co.  v.  Mallory,  137  Fed.  Rep.  332;  Morris  v. 
Bradley  Fertilizer  Co.,   64  Fed.   Rep.   55. 

»  Grand  Ave.  Hotel  Co.  v.  Wharton,  79  Fed.  Rep.  43. 


Warranty  273 

sold  to  be  fit  for  its  intended  use.^  It  has  been  decided  in 
Indiana  that  a  sale  for  a  sound  price  is  not  an  implied 
warranty  of  soundness,^  while  in  South  Carolina  on  the 
contrary  it  has  been  held  that  a  sound  price  calls  for  a  sound 
property.^  In  the  last  case  there  was  a  sale  of  corn  at  the 
market  price  for  sound  corn,  and  a  warranty  of  soundness 
was  implied.  The  conflict  between  these  cases  is  not  so 
irreconcilable  as  it  appears.  The  two  courts  have  in  mind 
different  classes  of  property,  —  property  which  has  an 
established  fixed  general  market  value  at  the  time  and  place 
of  sale,  and  property  which  has  none  or  a  variable  and 
uncertain  market  value.  For  examples,  if  the  best  and 
highest  grade  of  wheat  is  selling  in  the  open  market  at  a 
certain  definite  price  the  bushel,  a  sale  of  wheat  at  that 
price,  nothing  more  being  said,  may  very  well  imply  a  war- 
ranty that  it  is  of  the  best  and  highest  grade ;  but  if  farm 
horses  bring  from  ninety  to  a  hundred  and  fifty  dollars 
apiece,  the  sale  of  any  particular  horse  at  the  top  figure 
does  not  necessarily  imply  that  it  is  free  from  faults  or 
defects. 

§  177.     Seed  and  nursenj  stock. 

There  are  express  and  implied  warranties  upon  sales  of 
seed  and  nursery  stock.  A  nurseryman,  for  example,  who 
sells  peach  trees  and  represents  that  they  will  bear  large 
white  bright  peaches,  readily  sold,  warrants  that  they  will 
produce  such  fruit  and  is  liable  for  a  breach  of  the  warranty 

1  McCray  Refrigerator  Co.  v.  Woods,  99  Mich.  269  ;  Mark  v.  Williams 
Cooperage  Co.,  204  Mo.  242;  Rollins  Engine  Co.  v.  East.  Forge  Co., 
73  N.  H.  92.  ^  Court  v.  Snyder,  2  Ind.  App.  440. 

«  Bulwinkle  v.  Cramer,  27  S.  C.  376. 
T 


274  Law  for  the  American  Farmer 

if  the  trees  bear  inferior  and  worthless  peaches.^  A  person 
advertising  seed  rice  for  sale  and  who  represents  to  a  cus- 
tomer that  the  rice  he  sells  him  is  good  seed  warrants  it  to 
be  such  and  is  liable  in  damages  if  it  does  not  sprout  when 
planted  properly  in  due  season.^  The  principle  that  the 
producer  of  an  article  who  sells  it  to  a  person  applying  to 
him  for  such  an  article  as  will  serve  the  applicant's  in- 
tended purpose  impliedly  warrants  it  to  be  reasonably 
fit  for  that  purpose  has  been  applied  to  sales  of  seed  wheat  ^ 
and  millet  seed/  When  a  market  gardener  applies  to  a 
dealer  for  seed  to  produce  the  earliest  possible  crop  of 
pease  and  is  sold  seed  which  the  seller  guarantees  to  "pick 
four  or  five  days  earlier  than  any  other  seed  on  the  market," 
there  is  a  warranty  implied  that  such  seed  will  produce  an 
early  and  ample  crop  of  its  kind.^  If  a  nurseryman  who 
is  applied  to  for  trees  of  a  certain  sort  to  be  set  out  in  an 
orchard  delivers  trees  of  a  different  sort  which  are  set  out 
and  cultivated  until  it  is  certain  they  are  not  the  kind  for 
which  the  purchaser  called,  he  is  liable  in  damages  for  a 
breach  of  the  implied  warranty.^  When  a  shop-keeper 
delivers  wild  mustard  seed  to  a  customer  who  asks  for  rape 
seed  and  does  not  know  the  difference,  he  is  liable  for  a 
breach  of  warranty  whether  or  not  he  himself  knew  what 
the  seed  wasJ  A  farmer  who  applies  to  a  seed  dealer  or 
grower  to  buy  seed  productive  of  a  particular  variety  of 

1  Long  V.  Pruyn,   128  Mich.  57. 

2  Reiger  v.  Worth,   130  N.  C.  268. 

'  Prentice  v.  Fargo,  53  App.  Div.  608. 

*  Moore  v.  Koger,  113  Mo.  App.  423. 

*  Landreth  v.  Wyckoff,  67  App.  Div.  145. 

*  Shearer  v.  Park  Nursery  Co.,  103  Cal.  415. 
»  Hoffman  v.  Dixon,   105  Wis.  315. 


Warranty  275 

plant-life  is  entitled  to  receive  precisely  that  and  no  other 
for  which  he  calls ;  and  as  he  cannot  tell  by  inspection  or 
examination  or  any  available  test  whether  the  seed  deliv- 
ered is  of  the  special  sort  he  purchased  and  will  germinate, 
the  seller  is  held  to  warrant  by  implication  both  the  genu- 
ineness and  reasonable  fertility  of  what  he  delivers.  Thus 
a  purchase  of  a  variety  of  cabbage  seed  designated  as  "Van 
Wyck's  flat  Dutch,  raised  at  New  Lots,  L.  I.,"  entitles  the 
buyer  who  has  been  given  seed  in  likeness  to  it  which 
totally  fails  to  yield  cabbages  to  damages  from  the  seller 
for  a  breach  of  warranty.^  And  a  farmer  who  bought  of  the 
growers  "Bristol"  cabbage  seed  and  was  given  impure  seed 
that  produced  chiefly  cabbages  of  no  value  except  as  food 
for  cattle  was  held  to  be  entitled  to  damages  from  the 
sellers  on  the  same  ground.-  He  who  sells  seed  bought 
with  the  express  understanding  that  it  is  to  be  sown  for 
the  purpose  of  raising  a  crop  impliedly  warrants  it  to  be 
suitable  for  that  purpose.^  But  one  who  merely  fills 
a  buyer's  order  for  a  certain  kind  of  seed  by  supplying  that 
kind  does  not  warrant  it  to  be  fit  for  the  buyer's  purpose.^ 
If  seed  sold  is  not  the  kind  and  quality  the  seller  warranted 
it  to  be,  and  the  buyer  discovers  it  before  he  plants  it,  he 
may  keep  it  and  recover  as  damages  the  difference  between 
its  market  value  and  the  price  he  paid  for  the  seed  he 
bought,  if  the  price,  was  higher ;  but  if  he  does  not  discover 
it  until  he  has  planted  and  raised  a  crop  from  it,  then  his 
damages  are  the  difference  in  the  values  of  the  crop  he  got 
and  the  crop  which  would  have  been  produced  by  the  seed 

1  Van  Wyck  v.  Allen,  69  N.  Y.  61. 

2  White  V.  Miller,  71  N.  Y.  118. 
'  Shaw  V.  Smith,  45  Kan.  334. 

<  Gardner  v.  Winter,  117  Ky.  382. 


276  Law  J  or  the  American  Farmer 

he  bought.'  A  seed  dealer  who  has  sold  seed  with  an  ex- 
press or  impHed  warranty  cannot  escape  liability  upon  a 
breach  of  the  warranty  by  printing  a  disclaimer  of  any 
and  all  warranties  upon  the  invoice  sent  with  the  seed  when 
it  is  delivered.^  This  is  only  an  application  of  the  principle 
that  one  party  cannot  change  a  contract  without  the  other's 
consent. 

§  178.     Grain,  fruit,  and  vegetables. 

An  offer  of  a  certain  price  the  bushel  for  corn,  "provided 
it  is  good  salable  corn"  accepted  "for  one  carload  of  corn," 
raises  by  implication  a  warranty  by  the  seller  that  the  corn 
is  good  and  salable.^  There  is  an  implied  warranty  upon  a 
sale  of  fruit  not  yet  grown  that  the  fruit  shall  be  sound  and 
merchantable.*  A  sale  of  a  quantity  of  "good"  potatoes 
implies  a  warranty  that  those  delivered  will  be  of  fair  mer- 
chantable quality  and  free  from  latent  defects.^  One  who 
buys  a  carload  of  corn  after  inspecting  it  may  still  recover 
of  the  seller  damages  for  a  breach  of  warranty  if  it  turns 
out  that  the  corn  was  falsely  packed  so  as  to  display  sound 
corn  on  the  surface  and  conceal  musty  corn  underneath.® 
One  who  sells  potatoes  to  a  retail  grocer  and  warrants 
them  good  is  charged  with  notice  that  the  potatoes  he 
delivers  will  doubtless  be  mingled  with  others  and  conse- 
quently if  he  delivers  decaying  ones  that  infect  others  on 
hand  and  added,  he  will  be  liable  to  the  grocer  for  all  the 

»  Dunn  V.  Bushnell,  93  Am.  St.  Rep.  474. 

*  Landreth  v.  Wyckoff,  supra. 

3  Hollo  way  ».  Jacoby,  120  Pa.  St.  583. 

*  Blackwood  v.  Cutting  Packing  Co.,  76  Cal.  212. 
«  Nor.  Supply  Co.  v.  Wangard,  123  Wis.  1. 

«  Miller  v.  Moore,  83  Ga.  684. 


Warranty  277 

resulting  damages.^  A  buyer  of  perishable  fruit  who  ac- 
cepts a  draft  for  the  price  of  it  before  it  is  delivered  and 
inspected  and  finds  when  he  examines  it  that  it  is  not  as  it 
was  warranted  to  be  and  then  gives  immediate  notice  to 
the  consignor  of  his  refusal  to  take  it  at  the  price  charged 
is  entitled  after  waiting  a  reasonable  time  for  instructions 
and  getting  none  to  sell  the  fruit  for  the  seller's  account  and 
hold  him  for  the  loss.^ 

§179.     Food  for  man. 

It  is  a  general  rule  that  in  a  sale  of  goods  for  human  food 
there  is  an  implied  warranty  that  the  articles  are  whole- 
some.^ The  seller  of  provisions  for  domestic  use  is  bound 
at  his  peril,  the  New  York  Supreme  Court  has  declared,  to 
know  that  they  are  sound  and  wholesome,  adding  em- 
phatically that  the  principle  is  not  only  salutary  but 
necessary  to  preserve  health  and  hfe.*  Thus,  it  has  been 
decided  in  that  state  that  one  who  sells  a  heifer,  knowing 
that  it  is  diseased  and  unfit  for  human  food,  and  knowing 
also  that  it  is  bought  to  kill  and  sell  for  meat,  is  hable  for 
the  resulting  damage.^  In  Minnesota,  however,  it  has 
been  held  that  a  farmer  who  sells  a  steer  to  a  butcher 
does  not  impliedly  warrant  the  meat  from  the  animal  to  be 
fit  for  domestic  consumption.^  In  that  case  the  beast  had 
"lumpy  jaw,"  and  both  parties  noticed  a  lump  on  its  jaw 
when  bargaining.     The  seller,  too,  knew  that  the  beast  was 

1  Nor.  Supply  Co.  v.  Wangard,  supra. 

2  Hitchcock  V.  Griffin  &  S.  Co.,  99  Mich.  447. 

3  Nat.  Cotton  Oil  Co.  v.  Young.  74  Ark.  144. 
*  Van  Bracklin  v.  Fonda,   12  Johns.  468. 

6  Divine  v.  McCormick,  50  Barb.   116. 
«  Hanson  v.  Hartse,  70  Minn.  282. 


278        ,      Law  for  the  American  Farmer 

intended  by  the  buyer  to  be  killed  and  sold  as  meat  to  cus- 
tomers. In  Massachusetts,  also,  it  has  been  held  that  no 
warranty  is  implied  that  a  domestic  animal  killed  and  sold 
by  a  farmer  who  is  not  a  regular  dealer  in  meats  is  fit  for 
food.^  In  that  state  the  broad  proposition  has  been  laid 
down  that  a  sale  of  food  by  one  not  a  dealer  carries  no 
implied  warranty  that  it  is  wholesome  and  fit  to  be  eaten.^ 
In  Vermont,  too,  it  has  been  decided  that  a  farmer  who 
without  fraud  or  misstatement  sells  by  weight  to  a  butcher 
on  the  buyer's  inspection  several  hogs,  knowing  they  are  to 
be  slaughtered,  dressed,  and  sold  for  food,  is  not  liable  in 
damages  if  it  turns  out  that  some  of  the  animals  were  dis- 
eased and  not  fit  for  food.^  In  that  case  seven  hogs  were 
sold  and  two  of  the  number  proved  to  be  tuberculous. 
NotAvithstanding  these  decisions,  it  is  sound  advice  to  the 
farmer  to  take  no  chances  in  selling  animals  for  human 
food  when  he  knows  them  to  be  unfit,  even  though  he  makes 
no  misrepresentation  to  the  buyer.  He  may  indeed  escape 
the  payment  of  damages,  but  he  is  almost  certain  to  be 
put  to  the  annoyance  and  expense  of  a  lawsuit.  It  is  held 
even  in  New  York  that  there  is  no  implied  warranty  of 
fitness  for  food  when  beef  cattle  are  sold  by  a  drover  totally 
ignorant  of  any  defects  or  unsoundness  in  any  of  the 
beasts.*    And  a  like  decision  has  been  made  in  Tennessee.* 

§180.     Food  for  animals. 

A  somewhat  different  riile  applies  in  respect  of  implied 
warranties  upon  sales  of  food  for  animals.     The  rule  that 

'  Giroux  V.  Stedman,  145  Mass.  439. 

2  FarrcU  v.  Manhattan  Market  Co.,  198  Mass.  271. 

3  Warren  v.  Buck,  71  Vt.  44.     *  Goldrich  v.  Ryan,  3  E.  D.  Smith,  324. 
'  Goad  V.  Johnson,  6  Heisk.  340. 


Warranty  279 

goods  sold  for  human  food  are  impliedly  warranted  to  be 
wholesome,  it  has  been  said,  does  not  apply  to  sales  of  food 
for  animals.^  Hence  it  has  been  held,  in  what  is  perhaps  an 
extreme  case,  that  a  warranty  is  not  imphed  by  a  sale  of 
foodstuff  for  cattle,  that  it  is  fit  for  cattle  food,  nor  even 
that  its  constituents  are  not  deleterious  to  cattle.^  And 
yet  if  a  farmer  sells  oats  to  be  fed  to  the  buyer's  horses  to 
a  purchaser  who  has  no  opportunity  to  see  or  inspect  the 
grain  before  delivery,  there  is  an  implied  warranty  that  the 
oats  are  fit  for  horses  to  eat.^  It  is  apparently  safer  in 
IMassachusetts  to  sell  diseased  animals  for  human  con- 
sumption than  it  is  to  sell  unwholesome  food  for  live-stock. 
It  has  been  decided  in  that  commonwealth  that  if  a  person 
who  has  accidentally  spilt  white-lead  upon  hay  and  dili- 
gently tried  to  remove  all  of  it  that  was  damaged  and, 
believing  he  has  succeeded,  sells  the  rest  of  it,  he  takes  the 
risk  of  its  being  good  and  if  the  buyer's  stock  are  fed  with 
the  hay  and  die  of  white-lead  poisoning,  the  seller  is  an- 
swerable in  damages.^  A  commodity  labeled  and  offered 
for  sale  as  a  nostrum  to  fatten  and  improve  stock  and 
poultry,  although  not  intended  as  a  regular  food  is  yet 
covered  bj'^  a  statute  enacted  as  a  pure  food  regulation 
relating  to  domestic  animals.^ 

§  181.     Horses  and  other  animals. 

An  oral  warranty  of  horses  made  at  the  time  the  price  is 
agreed  upon  but  before  the  bill  of  sale  is  delivered  and  the 

*  Nat.  Cotton  Oil  Co.  v.  Young,  supra. 

2  Ibid.     Luken  v.  Freiund,  27  Kan.  664. 

'  Coyle  p.  Baum,  3  Okla.  695.       *  French  v.  Vining,  102  Mass.  132. 

6  Pratt  Food  Co.  v.  Bird,  148  Mich.  631. 


280  Law  for  the  American  Farmer 

sale  is  complete  binds  the  seller,^  Thus,  if  one  selling  a 
horse  merely  says  to  the  buyer  before  the  bargain  is  struck, 
"this  horse  is  sound, "  he  warrants  the  animal  to  be  sound.^ 
A  binding  warranty  may  be  made  after  part  of  the  price  has 
been  paid  and  before  the  thing  sold  has  been  delivered ; ' 
but  after  a  horse  has  been  actually  sold  and  delivered,  a 
statement  by  the  seller  to  the  buyer  that  the  animal  is 
sound  is  no  warranty.*  A  representation  on  selling  a  horse 
that  it  is  sound  and  kind  in  single  and  double  harness  is 
no  warranty  that  the  animal  will  not  take  fright  at  a  trolley 
car.^  One  who  sells  a  horse  which  he  knows  is  unsound 
and  represents  it  as  sound  and  so  misleads  a  purchaser 
unable  by  ordinary  observation  to  perceive  the  brute's  de- 
fects is  guilty  of  a  fraud  that  nullifies  the  sale.^  A  war- 
ranty that  a  horse  sold  is  sound  is  not  broken  when  the 
animal  has  a  temporary  and  curable  injury  which  does 
not  render  it  unfit  for  immediate  use.'^  A  general  war- 
ranty that  a  horse  is  sound  does  not  cover  visible 
quarter-cracks  observed  and  mentioned  by  the  buyer 
when  purchasing ;  ^  nor  yet  defects  in  the  animal's  eyes 
impairing  its  vision  obvious  even  to  casual  observers  and 
which,  in  fact,  the  buyer  notices.^  This  is  equally  so  if 
the  horse  is  lame  and  the  buyer  notices  the  lameness.^" 

»  Hobart  v.  Young,  G3  Vt.  363. 
2  Norton  v.   Doherty,  69  Mass.  372. 
5  Douglas  V.  Moses,  89  Iowa,  40. 
*  Cady  V.  Walker,  62  Mich.  157. 
»  Meyer  v.  Krauter,  56  N.  J.  L.  696. 
«  Whitworth  v.  Thomas,  83  Ala.  308. 
T  Roberts  v.  Jenkins,  21  N.  H.   116. 
«  Hill  V.  North,  34  Vt.  604. 
»  Fisher  ;;.  Pollard,  2  Head,  314. 
i«  Huston  V.   Plato,  3  Colo.  402. 


Warranty  281 

But  if  the  buyer,  seeing  the  horse  to  be  lame,  refuses  to 
buy  it  without  and  insists  upon  a  warranty  and  the  seller 
thereupon  expressly  warrants  the  brute,    the   warranty 
covers  lameness.^     A  general  warranty  that  a  horse  is 
sound  in  every  way  covers  such  visible  defects  as  ring- 
bones which  it  requires  skill  and  expert  knowledge  to  dis- 
cover  and   recognize.2     If    one    selling    a     lame     horse 
warrants  it  sound  and  represents  when  he  knows  better 
that  the  lameness  is  merely  the  result  of  fatigue  and 
stiffness  from  exposure  to  cold  and  not  permanent,  his 
warranty  covers  the  lameness.^     This  is  also  the  case  when 
he  falsely  represents  the  lameness  to  be  due  entirely  to  a 
nail  in  the  hoof."*     A  warranty  that  a  horse  is  sound  will 
cover  obvious  and  visible  defects  which  the  seller  artfully 
and  fraudulently  conceals  from  the  buyer's  notice.^     To 
speak  in  a  sale  of  swine  of  the  hogs  as  "hard-fed"  is  to 
represent  them  as  corn-fed  animals,  and,  as  corn-fed  hogs 
are  worth  more  than  hogs  fed  on  other  food,  a  representa- 
tion that  they  are  "hard-fed"  amounts  to  a  warranty .« 
A  general  warranty  that  an  animal  sold  is  sound  and  free 
from  disease  makes  the  seller  liable  for  damages  caused 
when  the  beast  communicates  an  infectious  or  contagious 
disease  from  which  it  suffers   to  other   live-stock   with 
which  it  is  placed  in   the   ordinary  or   usual   course  of 
things  in  ignorance  of  its  condition.^ 

>  Brown  v.  Bigelow,  10  Allen,  242. 

2  Birdseye  v.  Frost,  34  Barb.  367. 

3  Chadsey  v.  Greene,  24  Conn.  562. 

*  Brown  v.  Weldon,  27  Mo.  App.  260. 
«  Kenner  v.  Harding,  85  111.  264. 

•  Bartlett  v.  Hoppock,  34  N.  Y.  118. 
T  Joy  V.  Bitzer,  77  Iowa,  73. 


282  Law  for  the  American  Farmer 

§  182.     Animals  sold  for  breeding  purposes. 

There  is  a  difference  of  opinion  among  the  courts  as  to 
whether  or  not  upon  the  sale  of  an  animal  for  breeding 
purposes  any  warranty  is  implied  as  to  the  brute's  fitness 
to  generate  progeny.  In  Indiana  it  has  been  decided  that 
a  person  engaged  in  the  business  of  stock-raising  and  of 
selling  animals  for  breeding  purposes  and  who  knows  the 
qualities  and  capabiHties  of  the  beasts  he  has  raised  im- 
pliedly warrants  when  he  sells  a  stallion  for  breeding  pur- 
poses that  the  brute  is  reasonably  fit  and  capable  for  such 
purposes.^  But  in  Wisconsin  it  has  been  decided  that 
stock-raisers  who  sell  a  bull  although  they  know  the  buyer 
desires  it  for  breeding  purposes  if  they  commit  no  fraud 
and  make  no  untrue  representations  do  not  impliedly 
warrant  the  animal  as  fit  and  competent  to  breed  from, 
even  if  its  price  was  fixed  upon  the  assumption  that  it  was.^ 
In  Maine,  too,  it  has  been  decided  that  in  a  contract  for 
a  stallion's  service  no  warranty  is  implied  that  the  animal 
is  free  from  and  will  not  transmit  disease  to  the  colt.^  The 
buyer,  therefore,  of  an  animal  for  breeding  purposes  should 
assure  himself  by  exacting  an  express  warranty.  A  stal- 
lion sold  and  guaranteed  satisfactory  for  breeding  purposes 
upon  an  agreement  that  he  may  be  returned  if  unsatis- 
factory, provided  he  is  in  as  sound  and  healthy  a  condition 
as  he  was  when  delivered,  may  be  thrown  back  on  the 
seller's  hands  although  in  the  interval  it  has  become  more 
unsound  by  the  development  and  progress  of  a  disease 
which  existed  at  the  time  of  sale."* 

>  Merchants  &  Mech.  Bank  v.  Fraze,  9  Ind.  App.  161. 

«  McQuaid  v.  Ross,  85  Wis.  492. 

'  Briggs  V.  Plunton,  87  Me.  145. 

*  Rosenthal  v.  Rambo,  3  L.  R.  A.  (N.  S.)  678. 


Warranty  283 

§  183.     Farming  implements  and  machinery. 

There  is  no  implied  warranty  that  a  machine  ordered  by 
its  own  proper  name  and  description  from  the  manufacturer 
will  answer  the  purpose  for  which  the  buyer  desires  it.  If 
a  buyer  means  to  protect  himself  in  such  a  case,  he  should 
demand  an  express  warranty.^  There  is,  however,  an 
implied  warranty  by  the  manufacturer  that  the  article  he 
makes  and  sells  is  free  from  defects  arising  out  of  the  pro- 
cess of  manufacture  or  the  use  of  unsound  and  unsuitable 
materials.^  For  example,  a  manufacturer  of  farming 
implements  who  made  and  put  on  the  market  a  road  roller 
having  a  tongue  of  cross-grained  wood  with  a  knot-hole  in 
it  which  he  filled  with  a  soft  wood  plug  and  covered  up  the 
defects  with  putty  and  paint  has  been  held  liable  in  dam- 
ages to  a  farmer  who  bought  the  roller  from  a  retail  dealer 
and  was  injured  by  the  breaking  of  the  tongue  in  the 
ordinary  use  of  the  machine.^  There  is  an  implied  war- 
ranty by  one  who  sells  a  windmill  to  be  erected  upon  a 
site  pointed  out  by  the  buyer  at  the  time  of  the  purchase 
that  the  mill  will  work  well  in  the  designated  place.* 

§  184.     Buyer's  rights  and  remedies. 

The  buyer  of  personal  property  not  grown  or  manu- 
factured by  the  seller  and  not  expressly  warranted  who  has 
ample  opportunity  to  inspect  his  purchase  and  is  not  de- 
ceived by  fraudulent  conduct  or  misrepresentations  must 
look  out  for  himself.     If  the  property  proves  defective,  it 

1  Seitz  V.  Brewers'  Refrig.  Mach.  Co.,  141  U.  S.  510. 

2  Bierman  v.  City  Mills  Co.,  151  N.  Y.  482. 

»  Kuelling  v.  Roderick  Lean  Mfg.  Co.,  2  L.  R.  A.  (N.  S.)  303. 
*  McClamrock  v.  Flint,  101  Ind.  278. 


284  Law  for  the  American  Farmer 

is  his  loss,  and  he  has  no  remedy.'  Although  a  buyer  ex- 
amines his  purchase  and  rehes  on  his  own  judgment,  he 
may  still  exact  an  express  warranty  and  may  rescind  the 
purchase  if  it  is  broken.^  A  buyer  may  accept,  use,  and 
pay  for  a  defective  machine  sold  under  an  express  war- 
ranty and  still  recover  damages  for  a  breach  of  the  contract 
of  sale.^  If  one  buys  a  harvesting  machine  on  condition 
that  he  can  return  it  if  it  does  not  work  to  his  satisfaction, 
he  has  an  absolute  right  if  he  so  chooses  to  throw  it  back 
on  the  seller's  hands  without  giving  any  reason.'*  The 
buyer  of  a  farming  implement  sold  with  a  warranty  may 
return  it  to  the  seller  when  it  proves  to  be  materially 
different  from  what  it  was  warranted  and  unable  to  answer 
the  ends  it  was  warranted  to  serve.^  And  he  may  do  so, 
it  has  been  held,  notwithstanding  he  gave  a  note  for  the 
price  containing  a  statement  that  "  no  promise  or  contract 
outside  of  this  note  will  be  recognized."  ^  If  an  article 
sold  is  warranted  and  the  warranty  is  broken,  the  buyer 
may  either  offset  his  damages  when  sued  for  the  price  or 
bring  his  own  action  for  damages  against  the  seller,^  and 
he  need  not  return  or  tender  back  the  property  before- 
hand.^ The  buyer  of  an  article  expressly  warranted  when 
there  is  a  breach  of  the  warranty  has  his  choice  of  three 
courses:    (1)  he  may  either  refuse  to  receive  the  article 

'  Kircher  v.  Conrad,  9  Mont.  191. 

8  Smith  V.  Hale,  158.  Mass.  178. 

'  Benjamin  v.  Hillard,  23  How.  U.  S.  149. 

*  Osborne  v.  Francis,  38  W.  Va.  312. 

6  Gale  Sulky  Harrow  M'f'g  Co.  v.  Stark,  45  Kan.  606. 

•/6id. 

»  Lyon  V.  Bertram,  20  How.  U.  S.  149. 

•  Smeltzer  v.  White,  92  U.  S.  390. 


Warranty  285 

when  offered,  or,  if  it  has  been  delivered,  may  return  it  and 
rescind  the  sale;  or,  (2)  he  may  accept  and  retain  the 
article  and  sue  for  damages  for  the  breach  of  the  warranty ; 
or,  (3)  he  may  wait  until  he  is  sued  for  the  purchase  price 
and  offset  or  recoup  his  damages  from  the  breach  of  the 
warranty.^  The  purchaser  of  a  horse  warranted  sound  has 
a  right  to  make  a  proper  and  reasonable  use  of  the  animal 
before  rejecting  and  returning  it  as  unsound  without  af- 
fecting his  right  to  recover  back  the  purchase  price  he 
paid  for  the  beast ;  but  he  has  no  right  to  injure  the  brute 
by  willfully  or  negligently  overworking  or  overdriving  it, 
and  if  he  does  so,  he  cannot  recover.^  If  a  farmer  buys 
a  farming  implement  —  a  harvester,  corn-husker  and 
shredder,  or  a  threshing  machine  —  under  a  contract  to 
notify  the  seller  if  it  fails  to  work  within  a  stated  time  in 
order  to  be  relieved  from  paying  the  price,  he  does  not 
become  Hable  by  neglect  to  give  the  notice  if  the  limited 
time  is  consumed  by  the  seller's  agents  and  servants  in 
unsuccessful  efforts  to  make  the  implement  work.^  One 
who  buys  a  harvester  on  trial  with  the  right  to  return  it  if 
unsatisfactory,  and  who,  finding  it  does  not  answer,  notifies 
the  seller  that  he  will  not  keep  it  and  offers  to  return  it, 
does  not  make  himself  liable  for  the  price  by  consenting  to 
try  it  again  upon  the  seller's  promise  to  put  it  in  good 
order  and  repair  fit  for  use.^  This  will  be  otherwise  if  the 
buyer,  after  rejecting  the  machine  on  the  first  trial  when  the 
contract  stipulated  that  the  seller  should  be  allowed  to 

1  Uoderwood  v.  Wolf,  131  111.  425. 

2  McKnight  v.  Nichols,  147  Pa.  St.  158. 

3  Baker  v.  Nichols  &  S.  Co.,  10  Olda.  692 ;  First  Nat.  Bank,  v.  Butcher. 
1  L.  R.  A.  (N.  S.)  142 ;  Champion  Mach.  Co.  v.  Mann,  42  Kan.  372. 

*  Walter  A.  V/ood  Mowing,  etc.,  Co.  v.  Calvert,  89  Wis.  640. 


286  Law  for  the  American  Farmer 

remedy  any  defects,  went  right  on  using  it/  because  the 
voluntary  use  of  a  purchased  article,  after  it  is  found  not 
to  answer,  when  done  without  promise,  request,  or  induce- 
ment from  the  seller,  amounts  to  accepting  it.^  One  who 
buys  for  breeding  purposes  a  stallion  which  proves  in- 
capable and  unfit  and  who  gives  prompt  notice  and  offers  to 
return  the  animal  to  the  seller  does  not  by  consenting  at 
the  seller's  request  to  keep  the  brute  and  try  him  another 
season  waive  his  right  to  rescind  the  sale  and  recover 
damages  by  not  making  a  second  tender  back  of  the  animal 
before  it  dies  on  his  hands  during  the  trial  season.^ 

1  Aultman  v.  Therier,  34  Iowa,  272. 

«  Fox  V.  Wilkinson,  14  L.  R.  A.  (N.  S.)  1107. 

•  Merch'ts.  &  M.  Bank  v.  Fraze,  supra. 


CHAPTER  XXV 

FACTORS   OR   COMMISSION   MERCHANTS 

§§  185-194 

§  185.     The  commission  merchant  as  the  law  knows  him. 

A  person  to  whom  goods  are  consigned  to  sell  for  the 
consignor's  account  is  known  to  the  law  as  a  factor.^  He  is 
an  agent  given  the  possession  of  his  principal's  property 
with  authority  to  sell  it  and  receive  payment.^  One  who 
carries  on  business  for  himself  and  is  employed  by  another 
to  sell  personal  property  put  in  his  possession  or  control 
and  to  collect  and  account  for  the  price  is  called  a  factor.' 
The  factor  is  often  called  a  commission  merchant.^  Both 
names  mean  the  same  thing.^  A  factor  or  commission 
merchant  is  an  agent  who  has  the  actual  or  constructive 
possession  of  the  property  he  is  employed  to  sell.  Thus, 
he  may  have  the  goods  in  his  own  warehouse,  or  he  may 
hold  a  bill  of  lading  from  a  carrier,  or  a  warehouse  receipt 
from  a  warehouseman,  representing  and  entitling  the 
holder  to  the  delivery  of  the  property.  In  either  case  he 
is  prima  facie  the  owner  in  respect  of  those  to  whom  he 

1  Butler  V.  Dorman,  68  Mo.  298. 

2  Ibid. 

»  Howlancl  v.  Woodruff,  60  N.  Y.  73  ;  Rabenau's  case,  118  Fed.  R.  471. 
*  Spears  v.  League,  16  Tenn.  420 ;  Duguid  v.  Edwards,  50  Barb.  288. 
6  Thompson  v.  Woodruff,  47  Tenn.  401. 

287 


288  Law  for  the  American  Farmer 

makes  sales. ^  One  who  is  employed  to  sell  another's 
property  and  not  put  in  possession  of  it  is  a  broker,  not 
a  factor.2  A  broker  does  not  have  possession  of  the  prop- 
erty he  is  employed  to  sell/^  The  distinction  between 
factors  and  brokers  has  long  been  settled  —  the  former 
have  and  the  latter  have  not  possession  of  the  property 
they  are  authorized  to  sell ;  and  factors,  too,  are  empowered 
to  collect  payment,  while  brokers  usually  have  no  such 
authority.^  A  consignee  of  property  for  sale  differs  also 
from  an  ordinary  bailee  mainly  in  being  clothed  with 
authority  to  sell  the  property  bailed  to  him  in  the  ordinary 
course  of  business.^ 

§  186.     Powers  oj  factors. 

Unless  hampered  by  instructions,  a  factor  may  sell  the 
goods  consigned  to  him  at  his  discretion  in  the  usual 
course  of  trade  without  consulting  his  principal.^  He  may 
sell  the  property  in  his  own  name.''  And  he  may  sell  on 
credit  unless  directed  not  to  do  so.^  If  the  purchaser  is 
apparently  responsible  and  the  factor  acts  in  good  faith, 
he  may  accept  a  note  for  the  price.^  The  weight  of  author- 
ity is  to  the  effect  that  a  factor  or  commission  merchant, 
unless  he  is  expressly  instructed  to  the  contrary,  has  the 

'  Robinson  v.  Corsicana  Cotton  Factory,  124  Ky.  435. 

2  lUd. 

'  Butler  V.  Dorman,  supra. 

*  Ibid. 

'  Romeo  v.  Martucci,  72  Conn.  504. 
'  Butterfield  v.  Stephens,  59  Iowa,  596. 
•>  Dolafield  v.  Smith,  101  Wis.  664. 

*  Edgerton  v.  Michels,  66  id.  124 ;  Laussatt  v.  Lippincott,  6  Serg. 
&   R.   386. 

»  Greely  v.  Bartlett,  1  Me.  178 ;   Goodenow  v.  Tyler,  7  Mass.  36. 


Factors  or  Commission  Merchants  289 

implied  power  to  sell  his  principal's  goods  on  a  reasonable 
credit  provided  he  is  prudent  and  careful  about  the  buyer's 
responsibility  and  diligent  in  collecting  the  price.^  But  a 
factor  who  sells  his  principal's  goods  on  credit  has  no 
authority  afterwards  to  extend  the  purchaser's  time  to 
pay,  and  if  he  does,  he  makes  himself  personally  liable  for 
the  debt.2  Unrestricted  authority  to  a  factor  to  sell  gives 
him  authority  to  warrant  the  property  sold.^  A  factor 
has  full  authority  to  collect  and  receive  payment  for  prop- 
erty sold  by  him.  The  payment  of  the  purchase  price  of 
goods  bought  of  a  factor  or  commission  merchant  to  him 
is  a  full  discharge  of  the  buyer  from  all  liability  to  the 
owner  for  the  price.^  In  this  respect  the  factor's  authority 
differs  from  that  of  a  broker,  who,  as  a  general  rule,  has  no 
authority  to  receive  payment  for  the  property  he  is  em- 
ployed to  sell.^  And  he  has  authority  to  deposit  his  col- 
lections in  the  bank  to  his  own  credit.  His  insolvency  and 
act  of  bankruptcy  even  do  not  terminate  his  authority 
to  deposit  in  bank  in  his  own  name  proceeds  of  sales  of  his 
customer's  property.^  By  the  common  law  a  factor  has 
no  power  unless  it  is  expressly  conferred  to  pledge  the 
property  sent  him  to  sell,  whether  it  is  in  his  actual  cus- 
tody or  potentially  so  by  bill  of  lading.^     But  this  rule  of 

1  Walker  Co.  v.  Dubuque  Fruit  &  Produce  Co.,  113  Iowa,  428 ;  Day- 
light Burner  Co.  v.  Odlin,  51  N.  H.  59;  Roosevelt  v.  Dogherty,  129 
Mass.  301 ;    Joslin  v.  Cowee,  52  N.  Y.  90. 

2  Douglas  V.  Bernard,  Anth.  N.  P.  278. 

3  Schuchardt  v.  Allen,  1  Wall.  359. 

4  12  Am.  &  Eng.  Encyc.  of  Law  (2d  Ed.)  628. 

'  Higgins  V.  Moore,  .34  N.  Y.  417 ;   Graham  v.  Duckwall,  8  Bush.,  12. 
6  Interstate  Bank  v.  Claxton,  97  Tex.  569. 

'  Allen  V.  St.  Louis  Nat.  Bank,  120  U.  S.  20;    Com'  Bank  v.  Hurt, 
99   Ala.    130. 
U 


290  Law  J  or  the  American  Farmer 

the  common  law  has  very  generally  been  set  aside  by  stat- 
utes in  favor  of  innocent  persons  who  advance  money  in 
good  faith  to  factors  and  other  persons  upon  the  security  of 
personal  property  in  their  possession  as  apparent  owners.^ 

§  187.     Limitations  of  factors'  authority. 

A  factor  must  sell  goods  consigned  him  for  sale  in  the 
market  where  he  transacts  his  business  generally.^  Even 
if  he  makes  advances  to  the  consignor  he  does  not  thereby 
get  a  license  to  reship  the  goods  to  another  market.^  A 
factor  who  ships  to  another  market  than  his  own  goods 
consigned  to  him  to  sell  makes  himself  liable  for  the  deficit 
if  they  fail  to  bring  as  high  a  price  as  that  ruling  in  his 
home  market  at  the  time  of  sale.*  As  a  general  rule  a 
factor  cannot  bind  his  principal  by  disposing  of  the  con- 
signed property  out  of  the  usual  and  ordinary  course  of 
business.^  For  instance,  a  factor  has  no  right  to  dispose 
of  consigned  goods  by  way  of  barter.^  Merely  intrusting 
an  agent  with  a  horse  to  sell,  for  example,  does  not  war- 
rant a  stranger  in  supposing  him  authorized  to  swap  the 
animal  for  another  horse  and  boot.''  The  authority  of  a 
factor  to  warrant  the  goods  of  his  principal  to  a  buyer  is 
usually  limited  to  their  then  present  condition  and  quality 

J  Soltau  V.  Gerdau,  119  N.  Y.  380  ;  Macky  v.  Dillinger,  73  Pa.  St.  85 ; 
Price  V.  Wisconsin  Ins.  Co.,  43  Wis.  267. 

2  Wootters  v.  Kaufman,  73  Tex.  395 ;   Marr  v.  Barrett,  41  Me.  403. 

3  Phillips  V.  Scott,  43  Mo.  86. 

*  Weidner  v.  Olivit,  108  App.  Div.  122. 

'  Com^  Bank  v.  Heilbronner,  108  N.  Y.  439;  Warner  v.  Martin,  11 
How.  U.  S.  209. 

«  Guerreiro  v.  Peile,  3  Barn  &  Aid.  616. 
'  Kearns  v.  Nickse.  80  Conn.  23. 


Factors  or  Commission  Merchants  291 

and  does  not  extend  to  what  may  happen  in  the  future.* 
The  factor's  employment  is  a  personal  one,  he  has  no  right 
to  pass  his  agency  on  to  another ;  it  has  been  held  that 
even  his  death  will  not  authorize  the  representatives  of  his 
estate  to  dispose  of  the  principal's  goods.^  This  does  not 
preclude  the  factor  from  employing  such  assistants  as  he 
needs  or  desires  in  his  business. 

§  188.     The  duty  of  factors. 

A  consignor  is  entitled  to  the  exercise  of  all  the  skill, 
ability,  and  industry  of  his  factor  in  selling  the  consigned 
property  upon  the  best  obtainable  terms.  It  is  the  duty 
of  a  commission  merchant  to  sell  the  property  intrusted 
to  him  for  sale  for  the  highest  procurable  price,  but  he  is 
only  bound  to  use  proper  and  diligent  efforts  to  get  it.^  A 
commission  merchant  does  his  whole  duty  when  he  sells 
the  consigned  property  at  the  market  price  in  his  own 
market  and  within  a  reasonable  time.*  It  is  the  duty  of 
a  factor  to  keep  correct  accounts  of  sales  and  of  the  charges 
to  which  he  is  entitled  to  credit,  and  to  have  such  accounts 
open  to  the  inspection  of  his  principals.^  It  is  his  duty 
also  to  take  such  care  of  the  goods  consigned  to  him  for 
sale  as  a  reasonably  prudent  man  would  take  of  his  own 
property  similarly  situated.^  The  utmost  good  faith  is 
demanded  of  an  agent  in  all  his  transactions  with  his 

'  Upton  V.  Suffolk  Co.  MiUs,  11  Cush.  586 ;  Palmer  v.  Hatch,  46  Mo. 
685. 

2  Gage  V.  Allison,  1  Brev.  495 ;  Jackson  Ins.  Co.  v.  Partee,  9  Heisk,  296. 

3  Craig  V.  Harrison,  etc.,  Milling  Co.,  103  111.  App.  486. 
*  Wynne  L.  &  Co.  v.  Schnabaum,  94  S.  W.  Rep.  50. 

'  Armour  v.  Gaffey,  30  App.  Div.  121. 
«  Ives  V.  Freisinger  (N.  J.)  57  Atl.  R.  401. 


292  Law  for  the  American  Farmer 

principal  in  everything  relating  to  the  subject  of  his 
employment.*  When  goods  are  consigned  to  a  factor 
for  sale  the  consignor  has  a  right  generally  to  control  the 
sale  according  to  his  pleasure  by  instructions  given  at 
the  outset  or  from  time  to  time  afterwards  ;  and  the  factor, 
if  he  has  made  no  advances  or  incurred  no  habihties,  is 
bound  to  obey  the  orders.^  The  factor  must  obey  his 
principal's  instructions  and  is  not  allowed  to  deal  with 
the  property  as  his  own.^  If,  however,  a  factor  makes 
advances  on  a  consignment,  he  acquires  a  special  prop- 
erty in  the  consigned  goods,  and  has  then  a  right  to 
sell  them,  at  least  to  whatever  extent  may  be  necessary 
for  his  re-imbursement,  of  his  own  volition  and  without 
interference  from  the  consignor.^  But  if  the  consignor 
stands  ready  and  offers  to  repay  the  advances  and  to  make 
good  the  factor's  liabilities,  he  must  still  follow  his  in- 
structions.^ Although  a  factor  does  make  advances  and 
is  entitled  to  sell  the  goods  to  re-imburse  himself,  never- 
theless, inasmuch  as  in  these  modern  days  communication 
is  so  easy  and  quick,  he  is  not  at  liberty  to  disobey  late 
instructions  without  notice  to  his  principal  and  afford- 
ing the  principal  an  opportunity  to  make  good  the  out- 
lay.^ A  factor  is  not  bound  to  obey  instructions  contrary 
to  an  express  contract  he  made  at  the  beginning.'^ 

>  Wadsworth  v.  Adams,  138  U.  S.  380 ;  Boswell  v.  Cunningham,  32 
Fla.  277. 

2  Brown  v.  M'Gran,  14  Pet.  479. 

»  Foerderer  v.  Tradesmen's  Bank,  107  Fed.  R.  219. 

*  Brown  v.  M'Gran,  supra. 

'  Ihid. 

«  Marfield  v.  Goodhue,  3  N.  Y.  62 ;  Walker  Co.  v.  Dubuque  Fruit  & 
Produce  Co.,  supra. 

'  Sturtevant  Co.  v.  Cumberland  D.  &  Co.,  68  Atl.  351. 


Factors  or  Commission  Merchants  293 

§  189.     Factor's  liability  to  consignor. 

If  a  factor  honestly  and  diligently  does  his  best  to 
get  a  good  price  for  the  property  consigned  to  him  to  sell, 
he  is  not  liable  to  the  owner  for  selling  it  below  the  market 
value. ^  If  a  factor  returns  to  the  consignor  in  a  dam- 
aged condition  property  which  he  received  sound,  he  is 
liable  for  the  depreciation  in  its  value  unless  he  can  prove 
that  the  damage  occurred  without  his  fault. ^  The  refusal 
of  a  factor  to  return  property  dehvered  to  him  for  sale  and 
not  subject  to  a  lien  for  charges,  on  the  demand  of  the 
consignor,  amounts  to  a  conversion.^  A  conversion  may 
be  found  from  a  demand  and  refusal.^  A  conversion 
is  the  assumption  to  oneself  of  the  property  in  and  the 
right  of  disposing  of  another's  goods.^  It  is  an  unau- 
thorized assumption  and  exercise  of  the  right  of  ownership 
over  pergonal  property  belonging  to  another  to  the  alter- 
ation of  its  condition  or  the  exclusion  of  the  owner's  rights.^ 
Every  unauthorized  taking  of  personal  property  and  all 
intermeddling  with  it  beyond  the  extent  of  the  authority 
conferred,  in  case  a  limited  authority  has  been  given, 
with  intent  to  interfere  with  the  owner's  dominion  over  it, 
is  a  conversion.^  A  factor  who  reports  sales  for  less  than 
what  he  receives,  and  destroys  his  books  and  accounts 
while  his  employer  is  inspecting  them,  may  be  held  liable 

'  Drum-Flato  Com.  Co.  v.  Union  Meat  Co.,  77  S.  W.  Rep.  634. 
"  Ives  V.  Freisinger,  supra. 
3  Anker  v.  Smith,  87  N.  Y.  Supp.  479. 
*  Tome  V.  Dubois,  6  Wall.  548. 

5  Lord  Holt  in  Baldwin  v.  Cole,  6  Mod.  Rep.  212 ;    and  Lord  Ellen- 
borough  in  M'Combie  v.  Davies,  6  East.  540. 
«  Industrial  Trust  v.  Tod,  63  N.  E.  285. 
'  Laverty  v.  Snethen,  68  N.  Y.  522 ;   Field  v.  Sibley,  74  App.  Div.  8L 


294  Law  for  the  American  Farmer 

for  the  conversion  of  the  property.^  A  factor  who  gets 
possession  of  consigned  property  ostensibly  to  deliver  it 
to  a  purchaser  but  really  to  convert  it  or  the  proceeds  of 
it  to  his  own  use,  no  sale  having  previously  been  made, 
steals  such  property,  and  can  give  no  title  to  it  to  a  sub- 
sequent purchaser,  even  an  innocent  one.^  A  factor  who 
fails  to  exercise  reasonable  care  and  prudence  to  sell  to  a 
responsible  buyer  is  liable  for  the  loss  if  a  loss  follows.' 
He  is  not  liable  for  a  loss  which  results  from  his  refusal 
to  sell  the  property  on  credit  to  a  purchaser  whose  re- 
sponsibility he  doubts,  and  doubts  honestly.*  And  he 
is  not  liable  if  he  is  not  negligent  for  loss  or  damage  of  his 
principal's  goods  while  in  his  custody.^  To  make  a  factor 
liable  for  not  obeying  his  instructions  the  orders  must 
be  clear  and  distinct.^ 

§  190.     Sales  hy  factors  to  themselves. 

The  general  interests  of  justice  and  the  safety  of  those 
compelled  to  repose  confidence  in  others  alike  demand 
that  courts  inflexibly  maintain  the  great  and  salutary 
rule  that  an  agent  employed  to  sell  cannot  make  himself 
the  purchaser.''  The  law  prohibits  one  who  sells  on  ac- 
count of  another  from  buying  at  the  sale  on  his  own  ac- 
count.^   An  agent  may  not  without  the  full  knowledge  and 

•  Armour  v.  Gaffey,  supra. 

2  Soltau  V.  Gerdau,  supra. 

3  West.  U.  Cold  Storage  Co.  v.  Winona  Produce  Co.,  94  111.  App.  618. 

•  Durant  v.  Fish,  40  Iowa,  559. 

6  12  Am.  &  Eng.  Encyc.  Law  (2d  Ed.)  655. 

•  Sturtcvant  Co.  v.  Cumberland  D.  &  Co.,  supra. 
'  Porter  v.  Woodruff,  36  N.  J.  Eq.  179. 

»  Marsh  v.  Whitmore,  21  Wall.  178. 


Factors  or  Commission  Merchants  295 

consent  of  his  principal  purchase  for  his  own  benefit  the 
property  intrusted  to  him  to  sell.^  It  is  a  fundamental 
rule  that  an  agent  employed  to  sell  may  not,  unless  his 
employer  knows  and  consents  to  it,  be  himself  a  pur- 
chaser.2  He  is  not  permitted  to  buy  of  himself,  for  him- 
self ;  not  allowed  to  act  both  for  himself  and  his  principal 
in  the  same  transaction.^  All  the  profits  gained  by  an 
agent  out  of  property  purchased  by  himself  which  he 
was  employed  to  sell  for  another  belong  to  his  employer.* 
The  profits  made  by  a  commission  merchant  by  re-selling 
consigned  goods  which  he  took  himself  even  at  the  highest 
market  quotation  on  a  board  of  trade  and  exchange  on 
the  day  he  took  them  belong  to  his  consignor.^  A  custom 
or  usage  among  the  commission  merchants  of  a  particular 
market  to  buy  produce  consigned  to  them  for  sale  for 
themselves  at  the  highest  figure  of  the  day  on  the  exchange 
at  the  close  of  business  if  no  sale  has  been  effected  during 
the  day  does  not  make  the  transaction  lawful.^  The 
principal  is  not  estopped  from  repudiating  the  factor's 
purchase  in  such  a  case  unless  he  ratifies  it  with  full  knowl- 
edge of  all  the  details,  including  a  re-sale  at  a  profit.^ 
And  if  an  agent  employed  to  sell  property  sells  it  to  his 
wife,  his  employer  may,  if  he  chooses,  repudiate  the  sale 
on  learning  the  facts,^ 

»  Jansen  v.  Williams,  36  Neb.  869. 

»  Ruckman  v.  Bergholz,  37  N.  J.  L.  440. 

3  McNutt  V.  Dix,  83  Mich.  328. 

*  Boswell  V.  Cunningham,  supra. 

«  State  V.  Edwards,  94  Minn.  225. 

•  Ibid. 
1 1bid. 

8  Tyler  v.  Sanborn,  128  111.  136. 


296  Law  for  the  American  Farmer 

§  191.     Factor^ s  compensation  and  lien. 

A  factor's  services  in  selling  property  consigned  to  him 
to  sell  are  compensated  for  commonly  by  a  commission 
on  the  sale,  called  in  the  law  books,  "  factorage."  ^  A 
factor  has  a  lien  upon  the  property  intrusted  to  him  to 
sell  for  his  compensation  and  expenses.^  The  right  of 
a  factor  to  a  lien  upon  the  property  consigned  to  him  for 
sale  for  his  commissions  and  expenses  is  personal  to  him- 
self, and  does  not  pass  to  a  third  party.^  A  factor 
loses  his  lien  by  putting  the  consigned  property  in  a  ware- 
house and  giving  the  consignor  the  warehouse  receipt.'* 
A  factor  has  no  lien  upon  property  which  the  principal 
sends  or  delivers  directly  to  the  purchaser  and  which 
never  comes  into  the  factor's  possession.^  And  a  factor 
is  not  entitled  to  a  lien  upon  property  the  possession  of 
which  he  acquired  in  bad  faith.^  If  in  any  material  re- 
spect a  factor  willfully  disregards  a  duty  devolving  upon 
him  by  law  by  reason  of  his  agency,  he  is  not  entitled  to 
his  commissions.'^ 

§  192.     Factor's  right  to  re-imhursement  for  advances. 

When  a  factor  makes  advances  upon  goods  consigned  to 
him  for  sale  there  is  an  implied  agreement  by  the  con- 

>  state  V.  Thompson,  120  Mo.  12;  Ruffner  v.  Hewitt,  7  W.  Va.  585; 
Edgerton  v.  Michels,  supra. 

2  Graham  v.  Duckwall,  supra;  Higgins  v.  Moore,  34  N.  Y.  417; 
Kellogg  V.  Costello,  93  Wis.  232. 

'  Holly  V.  Huggeford,  8  Pick.  73  ^  Barnes  Safe  &  Lock  Co.  v.  Bloch 
Bros.  Tobacco  Co.,  38  W.  Va.  158. 

*  Rowland  v.  Dolby,  59  Atl.  666. 

'  Warren  v.  First  Nat.  Bank,  149  111.  9. 

«  People's  Bank  v.  Frick  Co..  13  Okla.  179. 

'  Jansen  v.  Williams,  supra. 


Factors  or  Commission  Merchants  297 

signer  to  re-pay  him  any  deficit  in  case  the  goods  fail  to 
bring  enough  to  cover  the  advances.^  If  goods  sent  a 
commission  merchant  for  sale  do  not  realize  enough  to 
make  good  his  advances,  he  may  recover  the  deficiency 
from  the  consignor.^  When  goods  upon  which  a  factor 
has  made  advances  are  lost  in  transit  he  may  recover  the 
advances  from  the  consignor.^  A  lien  for  advances  made 
by  a  factor  to,  for,  or  on  account  of  his  consignor  on  the 
property  intrusted  to  him  for  sale  is  implied  by  law.* 
For  the  purposes  of  such  lien  the  title  to  commodities 
delivered  to  a  conmion  carrier,  to  be  forwarded  to  com- 
mission merchants  who  have  made  advances  on  the  con- 
signment to  sell  and  repay  such  advances,  passes  at  once 
to  the  consignees  upon  being  delivered  to  the  carrier.^ 
A  factor  receiving  a  consignment  of  fruit  to  sell,  with  in- 
structions not  to  sacrifice  it  but  to  put  it  in  cold  storage 
unless  it  shall  bring  a  stated  average  price,  and  who  dis- 
obeys the  instructions  because  when  the  fruit  arrives  it 
is  in  such  a  decayed  condition  that  to  save  any  of  it,  it  is 
necessary  to  re-assort  it  and  sell  it  as  quickly  as  possible, 
is  not  precluded  by  his  disobedience  of  orders  from  re- 
covering from  his  consignor  the  excess  of  his  advances, 
expenses,  and  commissions  over  and  above  the  sum  realized 
by  the  sale  of  what  fruit  was  vendible  out  of  the  consign- 
ment.^ 

1  Murphy  Co.'s  Estate,  214  Pa.  St.  258. 
=  Kelley  v.  Maguire,  99  111.  App.  317. 
:  Kufeke  v.  Kehlor,   19  Fed.  R.   198. 

<  Plattner  Implement  Co.  v.  International  Harvester   Co.,  133  Fed. 
R.  376. 

'  Halliday  v.  Hamilton,  11  Wall.  560. 

«  Lippmann  v.  Brown,  88  N.  Y.  Supp.  141. 


298  Law  for  the  American  Farmer 

§  193.     The  consignor's  title  to  the  goods  and  proceeds. 

A  delivery  of  goods  to  an  agent  to  sell  on  commission 
is  a  bailment,  not  a  sale,  and  passes  no  title  to  the  recip- 
ient.^    The  title  to  the  property  remains  in  the  consignor 
until  it  is  sold  in  due  course  to  a  bona  fide  purchaser.^ 
Property  consigned  to  a  factor  for  sale  is  not  subject  to 
his  debts. 3     The  rights  of  the  consignor  are  superior  to 
those  of  ordinary  execution  creditors  of  the  factor.'*     A 
bank  which  knows  its  depositor  to  be  a  factor  has  no  right 
to  apply  to  its  own  debt  money  he  deposits  in  his  general 
account  which  he  received  from  the  sale  of  his  principal's 
goods.     The  owner  of  the  property  sold  can  in  such  a 
case  recover  its  proceeds  from  the  bank.^     Yet  it  cannot 
be  affirmed  that  in  every  case  a  bank  is  bound  to  take 
notice  that  money  deposited  generally  by  a  factor  or 
commission  merchant  to  his  own  credit  is  the  proceeds 
of  sales  of  property  intrusted  to  him  to  sell  for  his  em- 
ployer ;  but,  in  those  cases  where  there  are  circumstances 
imputing  such  knowledge  to  the  bank,  or  when  the  bank 
has  actual  knowledge  to  this  effect,  it  will  be  Hable  over 
to  the  factor's  principals.     The  mere  fact  that  a  commis- 
sion merchant  becomes  insolvent  will  not  charge  a  bank 
in  which  he  keeps  his  account  with  misappropriation  of 
his  employer's  funds  and  with  liability  for  them  to  his 
principals  because  it  honors  in  the  regular  course  of  busi- 
ness his  after-drawn  cheques.^     If  a  factor  in  violation 

>  Oilman  v.  Gilby,  8  N.  Dak.  627. 

2  Barnes'  Safe  &  Lock  Co.  v.  Bloch  Bros.  Tobacco  Co.,  supra. 

3  Peek  V.  Heim,  127  Pa.  St.  500. 

*  Corzine  v.  Brents,  123  111.  App.  613. 

6  Boyle  V.  N.  W.  Nat.  Bank,  125  Wis.  498  ;  Clemmer  v.  Drovers'  Bank, 
157  111.  206;    Union  Stockyards  Bank  v.  Gillespie,  137  U.  S.  411. 

•  Interstate  Bank  v.  Claxton,  supra. 


Factors  or  Commission  Merchants  299 

of  the  terms  of  consignment  and  out  of  the  usual  course 
of  business  transfers  the  consigned  goods,  even  to  an  in- 
nocent purchaser  for  value,  as,  for  example,  where  he  sells 
out  his  entire  stock  in  bulk  and  dehvers  with  it  the  con- 
signed property  to  the  purchaser  immediately  after  re- 
ceiving the  consignment,  the  consignor  is  entitled  to  follow 
and  retake  the  property. "^  This  is  said  to  be  too  thoroughly 
established  to  permit  of  argument.^  One  who  buys  con- 
signed property  from  a  factor,  then  sells  him  other  goods, 
and  finally  upon  a  settlement  of  accounts  pays  him  the 
computed  balance  is  still  liable  to  the  consignor  for  the 
price  if  the  factor  fails  to  pay  over  the  proceeds  to  his 
principal,  because  a  factor  may  neither  barter  his  employer's 
property  nor  use  it  to  pay  his  own  debt.^ 

§  194.     Regulation  by  statute  of  commission  merchants  and 
their  business. 

Many,  probably  most,  of  the  states  have  enacted 
Factor's  Acts  reg-ulative  of  the  business,  rights,  duties, 
and  liabilities  of  commission  merchants.  The  statutes 
vary  but  little  in  substance  and  generally  embody  the 
above  stated  principles,  with  penalities  for  violation. 
The  constitutionality  of  these  laws  has  been  attacked  in 
the  courts  with  diverse  results.  In  Illinois  *  and  Minne- 
sota ^  it  has  been  decided  that  the  legislature  may  con- 
stitutionally enact  statutes    classifying   separately   from 


1  Romeo  v.  Martucci,  supra. 

2  Ibid. 

3  Liebhardt  v.  Wilson,  88  Pac.  173. 
*  Lasher  v.  Peo.   183  111.  226. 

'  State  ex  rel.  Beek  v.  Wagener,  77  Minn.  483. 


300  Law  for  the  American  Farmer 

other  occupations  commission  merchants  who  sell  farm 
produce  and  which  regulate  the  business  so  as  to  guard 
against  the  abuses  peculiar  to  the  trade.  In  Michigan/ 
however,  it  has  been  decided  that  a  law  requiring  all 
merchants  who  sell  farm  produce  on  commission  to  give 
large  penal  bonds  conditioned  faithfully  to  perform  their 
contracts  with  consignors  is  unconstitutional  class  legis- 
lation and  an  unwarrantable,  unreasonable  interference 
with  the  right  of  every  man  to  do  a  legitimate  business. 
The  better  reason  appears  to  be  on  the  side  of  those 
who  maintain  the  commission  merchant's  business  to  be 
a  proper  subject  for  reasonable  pohce  regulation  by  the 
legislature. 

1  Peo.  ex  Tel.  Valentine  v.  Berrien  Circuit  Judge,  124  Mich.  664. 


CHAPTER  XXVI 

COMMON  CARRIERS 
§§  195-200 

§  195.     Common  carriers  of  freight. 

A  common  carrier  undertakes  to  transport  either  or 
both  freight  and  passengers/  as  in  the  famiUar  and  con- 
spicuous example  of  a  railroad  company.^  Telegraph 
companies  are  indeed  common  carriers  of  messages,  but 
they  may  well  be  ignored.  Nor  do  we  need  to  consider  at 
present  common  carriers  of  passengers,  but  only  those 
which  undertake  the  carriage  of  property.  Any  transpor- 
tation company  engaged  in  the  carriage  of  freight  is  a 
common  carrier  although  it  may  have  no  road  of  its  own.^ 
One  who  engages  to  transport  for  hire  from  one  place  to 
another  the  property  of  whosoever  chooses  to  employ 
him  is  a  common  carrier.'*  Every  one  who  undertakes  to 
carry  goods  for  any  one  who  asks  him  is  a  common  carrier,^ 
that  is,  every  one  who  undertakes  to  do  so  for  a  compen- 
sation for  all  persons  who  choose  to  employ  him.^ 

'  Thompson-Houston  Elec.  Co.  v.  Simon,  20  Ore.  60. 

2  Falvey  v.  Georgia  R.  R.,  76  Ga.  597. 

3  Merch'ts  Dispatch  Transp.  Co.  v.  Bloch,  86  Tenn.  392. 
^  The  Niagara,  v.  Cordes,  21  How.  U.  S.  7. 

s  Ingate  v.  Christie,  3  Car.  &  K.  61. 

*  Jackson  Architectural  Iron  W'ks  v.  Hurlbut,  158  N.  Y.  34 ;  Fuller 
V.  Bradley,  25  Pa.  St.  120 ;  Lang  v.  Brady,  73  Conn.  707 ;  Buekland  v. 
Adams  Exp.  Co.,  97  Mass.  124. 

301 


302  Law  for  the  American  Farmer 

§  196.     Public  obligations  of  carriers. 

In  undertaking  the  carriage  of  goods  for  anybody  and 
everybody  who  may  require  the  service,  a  common  carrier 
is  bound  to  treat  all  his  patrons  impartially  and  equally. 
Any  agreement  by  a  common  carrier  to  give  one  shipper 
a  favor  or  advantage  over  others  by  rebates  or  otherwise 
is  illegal  at  common  law  independent  of  any  statute  upon 
the  subject.^  A  carrier  has  no  right,  for  example,  to 
grant  exclusive  privileges  to  a  particular  express  company,^ 
for,  as  has  been  said,  if  it  had  this  power,  "  it  might  build 
up  one  set  of  men  and  destroy  the  others ;  advance  one 
kind  of  business  and  break  down  another."  ^  It  is  well 
settled,  according  to  a  learned  author,  that  a  carrier 
may  not  lawfully  charge  more  than  a  reasonable  sum  for 
the  carriage  of  goods  or  passengers,  although  it  is  not 
always  easy  in  a  given  case  to  determine  what  is  such  a 
reasonable  sum.^  If  a  common  carrier  makes  excessive 
charges  for  freight  or  secretly  allows  some  shippers  lower 
rates,  while  positively  assuring  others  that  it  does  not 
discriminate,  those  who  pay  the  excessive  charges  or  rates 
may  recover  back  the  overcharges.^  Public  policy  and 
safety  require  that  common  carriers  be  held  to  the  greatest 
care  and  diligence.^  Common  carriers  in  the  absence 
of  any  legislative  provision  prescribing  a  different  rule 

1  Fitzgerald  v.  Grand  Trunk  R.  R.,  63  Vt.  169. 

«  Sandford  v.  Catawissa  W.  &  Erie  R.  R.,  24  Pa.  St.  378. 

3  Ibid. 

*  Wheeler,  Mod.  L.  of  Carriers,  Chap.  VII.,  §  1. 

'  Cook  V.  Chic.  R.  I.  &  Pac.  R.  R.,  81  Iowa,  551 ;  Louisville,  &  C.  R.  R. 
V.  Wilson,  132  Ind.  517. 

«  Phila.  &  Read.  R.  R.  v.  Derby,  14  How.  U.  S.  468 ;  Indianapolis  & 
St.  L.  R.  R.  V.  Horst,  93  U.  S.  291 ;  City  of  Panamas.  Phelps,  101  U.  S.  453. 


Common  Carriers  303 

are  insurers  of  goods  shipped  by  them  and  are  liable  in 
all  events  for  every  loss  or  damage  however  occasioned 
unless  it  happens  from  the  act  of  God  or  the  public  enemy 
or  by  the  act  of  the  shipper  or  from  some  other  cause  or 
accident  expressly  excepted  in  the  bill  of  lading. ^ 

§  197.     The  legal  meaning  of  the  term  "act  of  God." 

The  carrier  of  freight  is  not  liable  when  it  is  lost  or  in- 
jured in  transit  by  the  act  of  God;  it  is,  therefore,  of  the 
greatest  importance  to  know  what  the  law  understands 
the  phrase  "act  of  God"  to  mean.  In  legal  acceptation 
an  act  of  God  is  an  act  which  cannot  happen  by  the  inter- 
vention of  man.2  The  term  denotes  a  cause  beyond  hu- 
man control  producing  a  loss  without  interference  by 
human  agency.^  It  means  something  superhuman,  or 
something  in  opposition  to  the  act  of  man ;  ^  and  something 
overwhelming  and  not  merely  an  incidental  circumstance.^ 
A  loss  or  injury  is  attributable  to  an  act  of  God  when  it 
results  exclusively  from  the  operation  of  natural  causes 
which  human  care  and  skill  could  neither  foresee  nor 
prevent.^  An  act  of  God  involves  the  notion  of  an  acci- 
dent from  natural  causes  impossible  to  foresee  and  guard 
against,  such  as  a  storm,  lightning,  or  tempest,  or  a  shoal 
or  bank  unknown  to  navigators  or  suddenly  appearing  in 
the  ocean.'^  Nothing  less  than  fortuitous  circumstances 
that  prevent  the  performance  of  a  duty  and  which  could 

1  The  ship  Maggie  Hammond,  9  Wall.  435. 

*  Niblo  V.  Binsse,  44  Barb.  54. 

3  Klair  v.  Wilmington  Steamb.  Co.  (Del.),  54  Atl.  694. 

*  Hale  V.  N.  J.  Steam.  Nav.  Co.,  15  Conn.  539. 

^  Oakley  v.  Portsmouth,  etc.,  Packet  Co.,  11  Exch.  618. 
«  Wald  V.  Pittsb.  C.  C.  &  St.  L.  R.  R.,  162  111.  545. 
'>  Ewart  V.  Street,  2  Bailej',  L.  157. 


304  Law  for  the  America7i  Farmer 

not  have  been  foreseen  by  the  exercise  of  any  reasonable 
prudence  or  overcome  by  any  reasonable  care  and  dili- 
gence will  constitute  an  act  of  God  excusing  the  discharge 
of  that  duty.^  There  is  a  distinction  between  the  terms 
"act  of  God"  and  "unavoidable  accident," although  some- 
times they  have  been  used  in  an  equivalent  sense.  That 
may  be  an  unavoidable  accident  which  no  foresight  could 
foresee  nor  protection  prevent ;  but  an  act  of  God  denotes  a 
natural  phenomenon  which  could  not  happen  by  the  inter- 
vention of  man,  as  storms,  lightnings,  and  tempests.^ 
An  act  of  God  is  something  which  human  power  cannot 
prevent  nor  human  prudence  avert.  But  while  no  human 
agency  can  stay  an  act  of  omnipotence,  yet  such  an  act 
may  often  be  foreseen  and  its  consequences  guarded 
against.  If  this  can  be  done  with  due  diligence,  a  failure 
to  exercise  such  diligence  will  be  negligence.^  The  act  of 
God  which  prevents  the  performance  of  a  duty  will  excuse 
the  failure  to  perform  a  duty  imposed  by  operation  of  law, 
but  not  one  assumed  by  contract.'* 

§  198.     Examples  of  what  are  and  what  are  not  acts  of  God. 

Acts  of  God  are  commonly  exemplified  by  natural  con- 
vulsions, such  as  lightnings  and  tempests,  unknown  and 
shifting  shoals,  and  the  like.^  An  earthquake  is  an  unusu- 
ally good  example  of  an  act  of  God  which  excuses  a  carrier.** 
A  loss  by  flood  or  storm  is  attributable  to  the  act  of  God 

»  Southern  Pac.  R.  R.  v.  Schoer,  114  Fed.  466. 

*  Merritt  v.  Earle,  29  N.  Y.  115. 

»  Smith  V.  Ala.  West.  R.  R.,  91  Ala.  455. 

*  Mitchell  V.  Hancock  Co.,  91  Miss.  414. 

•  Reaves  v.  Waterman,  2  Speers,  L.197. 

•  Slater  v.  So.  Car,  R.  R.,  29  S.  C.  96. 


Common  Carriers  305 

and  also  excuses  a  carrier.^  The  flood,  however,  must  be 
such  an  one  as  no  human  power  can  withstand  and  no 
foresight  or  prudence  anticipate  and  counteract.^  If  it  is 
an  extraordinary  and  unprecedented  flood,  it  is  an  act  of 
God,  and  a  carrier  is  not  liable  for  a  loss  it  causes.^  Thus, 
an  unusual  and  extraordinary  freshet  *  or  a  sudden  and 
unprecedented  overflow  ^  in  a  river  is  an  act  of  God  and 
excuses  a  carrier  from  liability  for  loss  or  damage  to  freight 
due  to  it.  But  acts  of  God  do  not  include  such  floods  as 
occur  so  frequently  that  ordinarily  prudent  men  are  ex- 
pected to  look  out  for  their  happening,®  for  although  every 
shower  of  rain  is  in  a  sense  an  act  of  God,  yet  an  ordinary 
freshet  or  river  flood  is  not  sufficient  to  excuse  the  failure 
to  perform  a  contract.''  A  landslide  caused  by  an  ordi- 
nary rain  storm  is  not  deemed  an  act  of  God  sufficient  to 
excuse  a  common  carrier.^  A  heavy  dew  which  delays  a 
carrier  is  not  classed  as  an  act  of  God.^  But  great  snow 
storms  which  delay  railroad  transportation  are  recognized 
acts  of  God.^"  Mere  inclement  weather,  on  the  other  hand, 
such  as  is  common  to  the  climate  of  the  country,  is  not  an 
act  of  God  that  will  excuse  a  carrier."     A  loss  occasioned 

1  Memphis  &  C.  R.  R.  v.  Reeves,  10  Wall.  176. 

'  Long  V.  Penn.  R.  R.,  147  Pa.  St.  34.3 ;  Libby  v.  Maine  Cent.  R.  R., 
85  Me.  34.  '  Norris  v.  Savannah,  F.  &  W.  R.  R.,  23  Fla.  182. 

*  Wallace  v.  Clayton,  42  Ga.  443 ;  Dorman  v.  Ames,  12  Minn.  451 ; 
Nashville  &  C.  R.  R.  v.  David,  53  Tenn.  261 ;  New  Haven  &  No.  Hamp- 
ton Co.  V.  Quintard,  31  N.  Y.  Super.  Ct.  89. 

^  Smith  V.  Ala.  West.  R.  R.,  supra. 

«  McCoy  V.  Danley,  20  Pa.  St.  85.      '  Doster  v.  Brown,  25  Ga.  24. 

8  Gleeson  v.  Virginia  Midland  R.  R.,  140  U.  S.  435. 

9  Mo.,  Kan.,  &  Tex.  R.  R.  v.  Truskett,  2  Ind.  Ter.  633. 

10  Pruitt  V.  Han.  &  St.  Jo.  R.  R.,  62  Mo.  527  ;  Black  v.  C.  B.  &  Q.  R.  R., 
30  Neb.  197.  »  Cannon  v.  Hunt,  116  Ga.  452. 

X 


306  Law  for  the  American  Farmer 

by  a  sudden  gale  of  wind  such  as  rarely  occurs  is  due  to  an 
act  of  God/  but  one  caused  by  a  sudden  but  not  an  unusual 
gust  of  wind  is  not.^  Accidental  fires,  unless  caused  by 
lightning,  are  not  regarded  as  acts  of  God,^  not  even  when 
they  become  great  conflagrations.'*  The  sudden  insanity 
of  a  railroad  engineer  which  impels  him  recklessly  to  run 
his  train  at  such  a  high  speed  as  to  wreck  it  and  thus  de- 
stroy and  damage  property  in  course  of  transportation  has 
been  held  not  to  be  an  act  of  God  which  excuses  the  carrier 
from  liabiUty.^ 

§  199.     Act  of  God  and  concurrent  negligence  of  carrier. 

The  act  of  God  in  destroying  or  injuring  property  under- 
going transportation  excuses  the  carrier  from  liability 
only  when  the  carrier's  own  negligence  did  not  occasion 
the  damage.^  To  excuse  one  from  performing  his  con- 
tract on  the  ground  that  he  was  prevented  by  an  act  of 
God  he  must  have  been  free  from  negligence  and  not  lack- 
ing in  judgment,  skill,  and  diligence.^  For  example,  if  a 
carrier  unloads  a  consignment  of  fruit  in  zero  weather  so 
that  it  is  destroyed  or  damaged  by  the  cold,  he  is  negligent 
and  cannot  avoid  liability  on  the  ground  that  the  freezing 
was  an  act  of  God.^    The  same  thing  is  true  of  a  shipment 

1  Spencer  v.  Daggett,  2  Vt.  92;  McClary  v.  Sioux  City  &  R.  R., 
3  Neb.  44.  =  Elliott  v.  Rossell,  10  John.  1. 

3  Miller  v.  Steam  Nav.  Co.,  10  N.  Y.  431 ;  Chevallier  v.  Straham, 
2  Tex.  115. 

•  Chicago  &  N.  W.  R.  R.  v.  Sawyer,  69  111.  285 ;  Merchts.  Despatch 
V.   Smith,   76  id.  542. 

6  Georgia  Cent.  Ry.  v.  Hall,  124  Ga.  322. 

•  Jonea  v.  Minneapolis  &  St.  L.  R.  R.,  91  Minn.  229. 
»  Smith  V.  No.  Amer.  Transp.  Co.,  20  Wash.  580. 

•  The  Aline,  19  Fed.  Rep.  875 ;   Wessels  v.  The  Aline,  25  id.  562. 


Common  Carriers  307 

of  any  perishable  freight.^  An  injary  to  fruit  trees  by 
frost  while  in  transit  is  held  to  be  due  to  an  act  of  God  where 
the  carrier  was  not  at  fault  in  neglecting  proper  care.^ 
The  courts  have  not  agreed  as  to  whether  or  not  a  carrier 
is  liable  for  the  loss  or  injury  of  property  intrusted  to  him 
for  transportation  in  consequence  of  an  act  of  God  where 
the  calamity  would  have  been  escaped  if  the  carrier  had 
not  unreasonably  and  inexcusably  delayed  to  forward 
the  property  promptly  upon  its  receipt.  In  a  recent  case 
(decided  in  1906)  the  Supreme  Court  of  Alabama  has  held 
the  carrier  liable  in  such  circumstances.^  The  court  there 
said  that  the  precise  question  of  the  liability  of  the  carrier 
in  such  a  case  had  arisen  and  been  adjudicated  in  other 
states  and  in  some  of  them  it  had  been  answered  in  the 
affirmative  and  in  others  in  the  negative.  The  courts  of 
New  York  and  Pennsylvania  were  the  leaders  on  opposite 
sides  and  when  the  question  came  up  in  other  jurisdictions, 
some  courts  followed  New  York  and  others  followed  Penn- 
sylvania. In  New  York  the  carrier  was  held  liable ;  *  in 
Pennsylvania  the  carrier  was  exonerated.^  The  doctrine 
of  the  New  York  cases  has  been  approved  and  adopted  in 
Alabama,^  Illinois/  Kentucky,^  Missouri,^  and  Tennessee.^^ 

1  Wing  V.  N.  Y.  &  Erie  R.  R.,  1  Hilt.  235. 

2  Vail  V.  Pac.  R.  R.,  63  Mo.  230. 

'  Ala.  Gt.  So.  R.  R.  v.  Quarles,  145  Ala.  436. 

4  Michaels  v.  N.  Y.  Cent.  R.  R.,  30  N.  Y.  564;    Read  v.  Spaulding, 
30  id.  630.  6  Morrison  v.  Davis,  20  Pa.  St.  171. 

«  LouisviUe  &  N.  R.  R.  v.  Gidley,  119  Ala.  523. 

'  Wald  V.  Pittsb.  C.  C.  &  St.  L.  R.  R.,  supra. 

8  Hernsheim  Bros.  &  Co.  v.  Newport  News  &   M.  Val.  Co.,  18  Ky. 
L.  Rep.  227. 

•  Pruitt  V.  Han.  &  St.  Jo.  R.  R.,  supra. 
1"  So.  Exp.  Co.  V.  Womack,  1  Heisk.  256. 


308  Law  for  the  American  Farmer 

On  the  other  side  are  the  United  States  Supreme  Court  ^ 
and  the  courts  of  Massachusetts,^  Michigan,^  Mississippi/ 
and  Ohio.^  In  what  is  perhaps  the  latest  reported  case  at 
the  time  this  is  written,  the  Supreme  Court  of  Iowa  has 
taken  its  place  alongside  of  New  York  and  affirmed  the 
carrier's  liability  under  the  stated  conditions.® 

§  200.     The  public  enemy. 

A  carrier  is  not  responsible  for  the  loss  or  injury  of 
freight  in  his  possession  in  consequence  of  the  acts  of  the 
public  enemy  when  the  encounter  could  not  have  been 
avoided.  A  carrier  is  bound  to  use  at  least  ordinary  care 
to  prevent  the  property  in  his  custody  from  falling  into 
the  hands  of  or  being  destroyed  by  the  pubhc  enemy  and 
if  he  neglects  to  do  so,  he  must  answer  for  the  loss.''  It  is 
not  always  clear  who  are  to  be  deemed  public  enemies  so 
as  to  excuse  a  common  carrier  who  loses  freight  by  their 
acts.  Soldiers  and  sailors  in  arms  against  the  country  of 
the  carrier  are  unmistakably  public  enemies,  but  ordinary 
predatory  criminals  most  certainly  are  not.  There  is  an 
intermediate  class  as  to  which  the  status  is  doubtful. 
Thus,  a  band  of  marauding  Indians  are  "public  enemies" 
whose  acts  in  plundering  a  common  carrier  relieve  it  from 
liabiUty  for  the  loss  of  freight,®  but  a  riotous  mob  is  not  a 

1  Memphis  &  C.  R.  R.  v.  Reevea,  supra. 

2  Hoadley  v.  Nor.  Tranap.  Co.,  115  Mass.  304. 
'  Mich.  Cent.  R.  R.  v.  Burrows,  33  Mich.  6. 

*  Yazoo  &  M.  Val.  R.  R.  v.  Millsaps,  76  Miss.  855. 

6  Daniels  v.  Ballantine,  23  Ohio  St.  532. 

«  Green-Wheeler  Shoe  Co.  v.  Chicago,  R.  I.  &  Pac,  5  L.  R.  A.  (N.  S.) 
882. 

7  HoUaday  v.  Kennard,  12  Wall.  254.  «  Ibid. 


Common  Carriers  309 

public  enemy  the  acts  of  which  will  excuse  a  carrier.^ 
And  yet  courts  have  finally  come  to  hold  a  carrier  not 
liable  when  it  is  prevented  from  performing  its  contract 
by  strikes  and  the  violence  of  strikers.^ 

»  Missouri  Pac.  R.  R.  v.  Nevill,  60  Ark.  375. 

s  Geismer  v.  Lake  Shore  &  M.  S.  R.  R.,  102  N.  Y.  663. 


CHAPTER  XXVII 

DUTIES  OF  COMMON   CARRIERS 
§§  201-210 

§  201.    Duty  to  receive  freight. 

A  common  carrier  is  bound  in  law  to  receive  and  carry 
to  its  destination  all  freight  of  the  kind  it  is  accustomed  and 
undertakes  to  transport  if  offered  at  a  reasonable  time  and 
place.^  The  obligation  to  do  so  rests  upon  the  carrier 
at  common  law.  A  statute  requiring  railroad  companies 
to  take  freight  offered  for  shipment,  and  making  them  re- 
sponsible for  damages  when  they  refuse,  merely  puts  in 
written  form  the  common  law  of  the  subject.^  A  carrier, 
however,  may  be  required  to  accept  freight  for  transporta- 
tion only  when  it  is  tendered  at  a  regular  station  or  a  place 
designated  for  the  purpose.^  A  carrier  is  not  justified  in 
declining  freight  addressed  to  a  point  beyond  its  line."* 
A  common  carrier  may  not  lawfully  require  a  shipper  to 
waive  any  of  his  legal  rights  as  a  condition  of  receiving 

'  Kirby  v.  West.  U.  Tel.  Co.,  4  S.  Dak.  105. 

2  St.  Louis  S.  W.  Ry.  v.  State,  8.5  Ark.  311. 

3  Louisville,  N.  A.  &  C.  R.  R.  v.  Flanagan,  113  Ind.  488. 

*  Seasongood,  S.  K.  Co.  v.  Tenn.  &  O.  Transp.  Co.,  21  Ky.  L.  Rep. 
1142. 

310 


Duties  of  Common  Carriers  311 

freight.^  A  carrier  which  refuses  to  receive  fruit  offered 
for  transportation  when  ordinarily  it  undertakes  to  carry 
fruit  is  Hable  for  all  the  direct  and  proximate  damages 
which  result  from  such  refusal  and  not  merely  for  such  as 
result  from  unreasonable  delay  in  transportation.^  A 
common  carrier  which  refuses  to  accept  freight  tendered 
it  for  transportation  is  hable  for  its  loss  by  theft  from 
a  warehouse  on  the  carrier's  wharf  committed  before 
the  shipper  has  time  to  care  for  it  after  notice  of  the 
refusal  to  receive  it.^  A  carrier  cannot  be  compelled 
when  the  law  forbids  to  accept  infected  cattle  for 
transportation."* 

§  202,     Duty  to  furnish  cars. 

The  obligation  of  a  common  carrier  to  receive  and  trans- 
port freight  carries  with  it  the  obligation  to  furnish  the 
necessary  cars  on  which  to  carry  it,  provided  of  course  the 
shipper  applies  for  them  and  gives  reasonably  timely  notice 
of  his  needs.  The  cars  may  only  be  required  at  a  regular 
station  or  one  of  the  receiving  points  designated  by  the 
carrier."  A  railroad  company  that  refuses  to  furnish  a 
shipper  with  the  cars  he  needs  unless  he  will  comply  with 
illegal  conditions  imposed  by  it  may  be  compelled  by  man- 
damus to  supply  the  necessary  cars.^  A  common  carrier 
does  not  perform  its  public  duties  by  providing  rolling- 
stock  and  equipment  only  adequate  to  handle  and  trans- 

1  Missouri  Pac.  R.  R.  v.  Pagan,  72  Tex.  127. 

2  Mathis  V.  So.  R.  R.,  65  So.  Car.  271. 

3  Seasongood,  S.  K.  Co.  v.  Tenn.  &  O.  Transp.  Co.,  supra. 
*  Chic.  &  A.  R.  R.  V.  Gasaway,  71  111.  570. 

»  Louisville,  etc.,  R.  R.  v.  Flanagan,  supra. 

6  Loraine  v.  Pittsburg,  etc.,  R.  R.,  205  Pa.  St.  132. 


312  Law  for  the  American  Farmer 

port  freight  during  the  dullest  seasons  of  the  year.^  It  is 
bound  to  be  prepared  to  meet  the  demands  of  the  busiest 
seasons.  A  written  request  by  a  shipper  to  a  railroad 
agent  to  furnish  freight  cars  "at  once"  is  sufficient  to 
make  a  carrier  liable  to  a  statutory  penalty  if  the  cars  are 
not  furnished  within  the  time  fixed  by  law  after  applica- 
tion for  them. 2  The  circumstance  that  the  object  of  a 
shipper  of  live-stock  in  requesting  a  car  to  transport  his 
cattle  was  to  offer  the  animals  for  sale  on  Sunday  in  viola- 
tion of  law  is  no  excuse  for  a  carrier  to  break  its  contract 
to  furnish  a  cattle  car  and  deliver  the  beasts  to  the  con- 
signee on  a  stated  date.^  The  damages  for  which  a  rail- 
road company  is  liable  for  failure  to  furnish  a  shipper  with 
cars  to  ship  property  to  fulfill  his  contract  are,  it  has  been 
decided  in  one  case,  the  profits  the  shipper  would  have 
gained  by  his  contract  had  the  cars  been  furnished.^ 

§  203.     Duty  to  furnish  suitable  cars. 

A  carrier  is  not  only  bound  to  furnish  cars  to  carry  offered 
freight,  but  cars  which  are  suitable  for  the  carriage  of  such 
freight.  Thus,  a  carrier  receiving  for  transportation  per- 
ishable property  is  bound  to  furnish  cars  suitable  to  pre- 
serve it  between  the  shipping  and  delivery  points  during 
the  ordinary  time  required  to  carry  it  from  one  to  the  other 
place.^  A  carrier  that  undertakes  to  transport  garden  truck 
which  can  properly  be  carried  and  delivered  in  sound  con- 
dition only  in  refrigerator  cars,  and  who  is  seasonably  noti- 

1  Yazoo  &  M.  Val.  R.  R.  v.  Blum,  88  Miss.  180. 

*  Patterson  v.  Mo.  Pac.  R.  R.,  77  Kan.  236. 

3  Waters  v.  Richmond  &  D.  R.  R.,  110  N.  C.  338. 

*  Houston,  E.  &  W.  T.  R.  R.  v.  Campbell,  91  Tex.  551. 
»  St.  Louis,  I.  M.  &  S.  R.  R.  v.  Renfroe,  82  Ark.  143. 


Duties  of  Common  Carriers  313 

fied  to  provide  suitable  cars  for  the  carriage  of  vegetables 
ready  for  shipment  and  who  neglects  to  provide  fit  cars, 
in  consequence  of  which  the  shipment  decays  and  is  spoiled, 
is  liable  in  damages  for  the  shipper's  loss,  and  it  is  no  excuse 
that  the  carrier  did  not  own  any  refrigerator  or  other  suit- 
able cars.^  A  common  carrier  of  butter  is  not  excused  from 
liability  for  a  damage  to  it  by  heat  because  it  did  not  have 
refrigerator  cars,  especially  when  it  could  have  prevented 
the  loss  by  supplying  ice  to  the  cars  it  used.^  A  carrier  is 
liable  for  the  loss  by  freezing  of  a  shipment  of  fruit  it 
carried  in  a  car  having  openings  which  admitted  cold  air 
and  snow.-^  A  railroad  company  undertaking  to  carry 
live-stock  must  furnish  suitable  cars  for  transporting  ani- 
mals.^ It  is  the  duty  of  a  railroad  company  as  a  carrier 
of  hve-stock  to  furnish  suitable  cars  on  reasonable  notice 
to  one  desiring  to  ship  animals  over  its  road.^  A  shipper 
of  fruit  who,  after  notifjdng  a  railroad  carrier  that  he  will 
need  a  certain  number  of  refrigerator  cars,  tenders  more 
fruit  for  carriage  than  that  number  of  cars  will  hold,  may, 
nevertheless,  hold  the  company  liable  on  its  refusal  to 
receive  the  excess  if  the  circumstances  are  such  that  the 
carrier  could  have  taken  care  of  the  surplus.^ 

§  204.     Duty  to  furnish  cars  free  from  defects. 

It  is  the  duty  of  a  common  carrier  by  rail  not  only  to 
furnish  cars,  and  suitable  ones,  but  also  to  furnish  cars 

1  Atlantic  Coast  Line  Ry.  v.  Geraty,  166  Fed.  Rep.  10. 

2  Beard  v.  111.  Cent.  R.  R.,  79  Iowa,  518. 

'  Merch'*  Desp.  &  Transp.  Co.  v.  Cornforth,  3  Colo.  280. 

*  Eckert  v.  Penn*.  R.  R.,  211  Pa.  St.  267. 
'  Leonard  v.  Whitcomb,  95  Wis.  646. 

•  Mathia  v.  So.  R.  R.,  supra. 


314  Law  for  the  American  Farmer 

that  are  safe.  This  duty  is  absolute  and  the  carrier  is 
liable  for  its  breach  if  it  fails  to  exercise  proper  care  and 
furnishes  defective  cars,  though  they  are  ignorantly  ac- 
cepted and  used  by  the  shipper.^  A  carrier  who  knows  its 
cars  to  be  unsound  and  unsafe  cannot  escape  hability  to  a 
shipper  for  injury  or  loss  in  consequence  of  their  defective 
condition  by  exacting  a  contract  requiring  him  to  select 
and  inspect  the  car  and  take  the  risk  of  its  safety  and  then 
foisting  upon  him  a  car  that  appears  sound  but  is  really 
defective.^  If  a  carrier  furnishes  unfit  and  unsafe  vehicles 
for  transporting  goods  accepted  for  carriage  he  cannot  es- 
cape responsibility  on  the  plea  that  the  shipper  used  them 
knowing  them  to  be  defective.^  A  carrier  is  liable  for 
injuries  to  live-stock  due  to  carrying  the  animals  in  defec- 
tive, unfit,  and  unsafe  cars,  although  in  combination  with 
the  crowding,  bumping,  and  kicking  of  the  brutes  while 
in  transit  according  to  their  nature.^  A  carrier  who  re- 
ceives live-stock  for  transportation  over  its  own  and  other 
lines  is  liable  for  injuries  sustained  by  the  beasts  in  con- 
sequence of  the  defective  condition  of  the  car  furnished, 
notwithstanding  the  injuries  happened  on  another  line.^ 
A  carrier,  however,  is  not  bound  to  furnish  cars  strong 
enough  to  withstand  the  assaults  of  particularly  vicious 
and  unruly  animals.^ 

1  Leonard  v.  Whitcomb,  supra. 

«  Lake  Erie  &  West  R.  R.  v.  HoUand,  162  Ind.  406. 

3  Ogdensburg  &  L.  C.  R.  R.  v.  Pratt,  22  Wall.  123. 

4  Betts  V.  Chic.  R.  I.  &  P.  R.  R.,  92  Iowa,  343 ;  Lake  Erie  &  W.  R.  R. 
V.  Holland,  supra. 

'  Blatcher  v.  Phila.,  Bait.  &  Wash.  R.  R.,  31  Dist.  Col.  App.  385. 
«  Betts  V.  Chic.  R.  I.  &  P.  R.  R.,  supra;  Selby  v.  Wilm.  &  Weld.  R.  R., 
113  N.  C.  588. 


Duties  of  Common  Carriers  315 

§  205.     Terminal  facilities  for   reception  and  delivery   oj 
freight. 

It  is  the  duty  of  a  common  carrier  of  live-stock  to  provide 
necessary  facilities  for  receiving  animals  offered  for  ship- 
ment and  for  the  delivery  of  the  beasts  to  the  consignee 
at  their  destination. ^  A  common  carrier  who  undertakes 
to  transport  live-stock  is  bound  to  provide  suitable  yards 
and  pens  for  the  animals  at  points  of  embarkation  and 
delivery.2  And  it  is  also  bound  to  keep  such  stockyards 
and  pens  reasonably  safe  for  the  beasts  and  is  liable  in 
damages  if  it  neglects  that  duty.^  Thus,  if  a  carrier  of 
live-stock  permits  salt  water  to  flow  into  its  shipping  pens, 
it  is  negligent  and  hable  for  the  injuries  to  the  stock 
caused  by  drinking  it.^  Again,  a  common  carrier  of 
live-stock  is  liable  to  the  owner  of  cattle  delivered  for 
transportation  when  the  beasts,  while  awaiting  shipment, 
escape  from  the  receiving  pen,  in  consequence  of  the  falling 
of  one  side  because  the  posts  were  too  rotten  to  support  it, 
and  are  injured.^  The  carrier  is  also  liable  for  personal 
injuries  sustained  by  a  stock-warder  in  falhng  from  a  walk 
built  around  the  top  of  a  stock  pen  while  inspecting  cattle 
because  its  support  was  decayed  and  defective  and  had 
been  so  long  enough  to  charge  the  carrier  with  notice  of 
its  unsoundness.^  A  common  carrier  of  live-stock  must 
provide  proper  facilities  for  unloading  the  animals  wheii 
they  reach  their  destination  and  if  they  are  injured  in  con 

1  Covington  Stockyard  Co.  v.  Keith,  139  U.  S.  128. 

2  Norfolk  &  W.  R.  R.  v.  Harman,  91  Va.  601. 

3  St.  Louis  &  S.  F.  R.  R.  v.  Beets,  75  Kan.  295. 

*  Norfolk  &  W.  R.  R.  v.  Harman,  supra. 
'  St.  Louis  &  S.  F.  R.  R.  v.  Beets,  supra. 

•  Atchison,  T.  &  S.  Fe  R.  R.  v.  Allen,  75  Kan.  190. 


316  Law  for  the  American  Farmer 

sequence  of  the  lack  of  such  facihties  the  carrier  is  re- 
sponsible.^ It  is  equally  the  duty  of  a  common  carrier 
who  accepts  milk  for  transportation  to  provide  reasonably 
proper  facilities  to  receive  and  deliver  it  and  to  care  for  it 
during  transportation.^  But  it  has  been  held  that  if  a 
carrier  has  no  agent  or  freight  house  or  other  structure 
than  an  open  platform  at  a  stopping  place  on  its  line  desig- 
nated for  the  dehvery  of  goods  carried  by  it,  and  it  has 
stipulated  in  its  bill  of  lading  for  a  delivery  on  such  plat- 
form at  the  owner's  risk,  it  is  not  at  fault  in  unloading 
the  consignment  in  a  storm  and  leaving  it  on  the  platform 
unprotected  from  the  weather.^  Every  court,  however, 
may  not  be  willing  to  accept  unqualifiedly  this  decision  as 
altogether  sound. 

§  206.     Duty  not  to  delay  or  deviate. 

It  is  the  duty  of  a  common  carrier  to  forward  with 
promptitude  and  Avithout  unreasonable  delay  all  goods 
accepted  for  transportation.^  The  delay  of  a  common 
carrier  to  move  property  intrusted  to  it  for  transportation 
which  will  make  it  liable  if  the  freight  is  lost  in  consequence 
by  unavoidable  casualty  must  be  negligent,  unreasonable, 
and  inexcusable.^  For  example,  a  delay  by  a  common 
carrier  on  account  of  refraining  from  business  on  a  public 
hohday  is  excusable.^    And  a  carrier  delayed  solely  by 

1  Louisville  &  N.  R.  R.  v.  Gormley,  121  S.  W.  Rep.  965 ;  Texas  &  P. 
Ry.  V.  Henson,  121  id.  1127. 

2  Baker  v.  Bost.  &  Me.  R.  R.,  74  N.  H.  100. 

3  Allam  V.  Penn^.  R.  R.,  183  Pa.  St.  174. 

*  Bibb  Broom  Corn  Co.  v.  Atchison,  T.  &  S.  Fe  R.  R.,  69  L.  R.  A.  609. 
'  Rodgcrs  V.  Mo.  Pac.  R.  R.,  75  Kan.  222. 
«  Penn".  R.  R.  v.  Naive,  112  Tenn.  239. 


Duties  of  Common  Carriers  317 

a  mob  is  liable  neither  for  a  decline  in  the  price  in  the  market 
to  which  the  goods  carried  were  consigned  nor  for  the 
deterioration  of  perishable  freight.^  A  carrier  is  not  justi- 
fied in  deviating  from  the  regular  transportation  route 
without  notifying  the  shipper  and  receiving  his  instruc- 
tions unless  the  deflecting  obstruction  is  such  that  the 
freight  cannot  be  properly  taken  care  of  until  the  shipper's 
orders  can  be  had.^  If  an  express  company  has  a  choice 
of  two  routes  over  which  to  send  property,  one  safe  and  the 
other  hazardous,  and  chooses  the  risky  one,  it  is  liable  if  a 
loss  occurs.^  A  carrier  which  sends,  for  instance,  a  car- 
load of  orange  trees  early  in  March  from  New  Orleans,  La., 
to  Riverside,  Cal.,  by  a  northern  route  through  Denver, 
Colo.,  and  Ogden,  Utah,  without  notice  to  or  direction 
from  either  consignors  or  consignees,  is  liable  for  a  loss 
by  freezing,  notwithstanding  its  route  through  Texas, 
New  Mexico,  and  Arizona  was  temporarily  impassable  on 
account  of  storms  and  washouts.^  A  common  carrier  who 
after  notice  that  a  shipment  of  freight  was  liable  to  injury 
by  freezing  and  specially  contracting  to  make  a  timely 
deUvery  delays  without  reasonable  excuse  or  justification 
to  forward  the  freight  to  a  connecting  carrier  is  liable  in 
case  the  property  freezes  after  leaving  its  Hne.^  If  a 
consignee  of  cattle  feed  notifies  the  carrier  on  arrival  of 
the  shipment  that  he  is  out  of  feed  and  needs  it  at  once  for 
his  stock,  the  carrier  is  liable  for  resulting  damages  if  he  is 
not  prompt  and  diligent  in  making  dehvery.^ 

«  Gulf,  etc.,  R.  R.  V.  Le\a,  76  Tex.  337. 

2  Louisville  &  N.  R.  R.  v.  Odil,  96  Tenn.  61. 

3  U.  S.  Exp.  Co.  V.  Kountze  Bros.,  8  Wall.  342. 
<  Pierce  v.  So.  Pac.  Co.,  120  Cal.  156. 

6  Fox  X.  Bost.  &  Me.  R.  R.,  148  Mass.  220. 

•  Bourland  v.  Choctaw,  O.  K.  &  GuU  Ry.,  99  Tex.  407. 


318  Law  for  the  American  Farmer 

§  207.     Duty  to  deliver  to  consignee. 

A  common  carrier  may  excuse  a  failure  to  deliver  freight 
to  a  consignee  by  proving  a  delivery  of  it  to  its  true  owner ;  ^ 
but  when  a  carrier  delivers  property  it  has  transported 
contrary  to  or  without  the  orders  of  the  shipper  it  under- 
takes to  establish  the  right  of  the  person  to  whom  the  prop- 
erty was  delivered  to  receive  it.^  The  failure  of  a  carrier 
to  dehver  freight  intrusted  to  it  for  transportation  pre- 
supposes negligence  unless  the  circumstances  of  its  loss 
are  shown.^  A  common  carrier  by  water  who  accepts 
goods  marked  to  be  delivered  at  a  private  landing  place  is 
hable  for  damages  caused  by  delivering  them  elsewhere 
unless  he  has  a  good  excuse.*  The  measure  of  damages  for 
the  failure  of  a  common  carrier  to  deliver  goods  accepted 
for  transportation  is  their  market  value  at  the  time  and 
place  when  and  where  they  should  have  been  delivered,  and 
subsequently  accruing  interest.^  If  the  freight  is  taken 
from  the  carrier  by  public  officers  of  the  government,  de- 
livery of  it  to  the  consignee  is  excused.^  A  carrier  is  not 
liable  for  not  delivering  to  the  consignee  fruit  which  the 
local  public  health  authorities  at  the  destination  forbid 
the  carrier  to  unload.'' 

§  208.     Duty  to  make  good  freight  lost  in  transit. 

The  contract  for  the  carriage  of  property  is  one  of 
insurance  against  every  loss  or  damage  save  such  as  may 

I  The  Idaho,  93  U.  S.  575.        2  Wolfe  v.  Mo.  Pac.  R.  R.,  97  Mo.  473. 
3  Browning  v.  Goodrich  Transp.  Co.,  78  Wis.  391. 
^  Strieker  v.  Leathers,  68  Miss.  803. 

'  Mobile  &  M.  R.  R.  v.  Jurey,  111  U.  S.  584 ;  N.  Y.,  L.  E.  &  W.  R.  R. 
V.  Estill,  147  id.  591. 

«  Stiles  V.  Davis,  1  Black,  101 ;   Wells  ».  Maine  S.  S.  Co.,  4  Cliff.  232. 
'  Ala.  &  Vicksb.  Ry.  v.  Tirelli  Bros.,  21  L.  R.  A.  (N.  S.)  731. 


Duties  of  Common  Carriers  319 

be  occasioned  by  the  act  of  God,  or  the  public  enemy,  or 
the  fault  of  the  owner  of  the  property.^  A  common  carrier 
subject  to  the  stated  qualifications  is  responsible  for  the 
safe  custody  and  due  transportation  of  property  intrusted 
to  him  for  carriage.^  If  goods  are  lost  during  trans- 
portation the  carrier  is  prima  facie  liable  ^  unless 
protected  by  agreement  mider  which  they  were  ac- 
cepted only  at  the  shipper's  risk.^  The  negligence  of 
the  carrier  is  presumed  when  goods  are  lost  in  transit 
and  the  loss  is  not  adequately  explained.^  Thus,  a  carrier 
who  has  undertaken  to  transport  three  and  who  delivers 
but  two  dogs  is  presumed  to  have  been  negligent  when  it 
does  not  account  for  the  missing  one.^  The  burden  is  on 
a  carrier  who  dehvers  freight  in  bad  order  to  prove  that  it 
was  not  in  good  order  when  it  came  into  his  possession.^ 
Nor  will  a  "clear  receipt"  given  on  receiving  goods  de- 
livered by  a  common  carrier  preclude  the  consignee  from 
showing  afterwards  that  they  were  really  wet  and  damaged 
when  delivered.^  The  strict  rule  of  liability  just  stated  is 
qualified  by  some  important  exceptions  independent  of 
any  special  contract  for  exemption.  A  loss  or  injury  due 
to  the  act  of  God  or  the  public  enemy,  as  has  already  been 
stated,  exonerates  the  carrier.  In  addition  to  this  the  carrier 
is  not  hable  for  losses  due  to  the  nature  of  the  freight.  It 
is  not  liable,  for  example,  for  losses  in  transit  due  to  natural 

1  Ala.  Gt.  So.  R.  R.  v.  Quarles,  145  Ala.  436. 

2  Com'  Transp.  Co.  v.  Fitzhugh,  1  Black,  574. 

3  Inman  v.  So.  Car.  R.  R.,  129  U.  S.  128. 

*  N.  J.  Steam  Nav.  Co.  v.  Merch'"  Bank,  6  How.  U.  S.  344. 

'  Browning  v.  Goodrich  Transp.  Co.,  supra. 

«  Adams  Exp.  Co.  v.  W^alker,  67  L.  R.  A.  412. 

">  Beard  v.  111.  Cent.  R.  R.,  supra. 

8  Mears  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  75  Conn.  171. 


320  Law  for  the  America ti  Farmer 

and  ordinary  evaporation  of  liquids,  or  the  leakage  of  fluids 
from  casks,  or  the  bursting  of  vessels  in  consequence  of 
the  fermentation  of  their  contents.^  Nor  is  the  carrier 
liable  for  loss  or  injuries  to  freight  caused  by  the  fault  of 
the  shipper.  Thus,  it  is  the  duty  of  the  shipper  properly 
to  pack  the  goods  he  ships.  The  carrier  therefore  is  not 
liable  for  a  loss  caused  by  negligent  packing,  since  that  is 
something  he  could  neither  know  nor  obviate.^  Then 
again,  if  a  shipper  does  not  tell  the  truth  to  the  carrier 
when  asked  about  the  value  or  valuable  character  of  the 
offered  freight,  the  carrier  will  not  be  responsible  in  case 
it  is  lost,  unless  possibly  for  gross  negligence  or  conver- 
sion.^ And  a  carrier  is  not  liable  for  freight  lost  because 
it  was  incorrectly  addressed  to  the  consignee.^ 

§  209.     Duty  to  care  for  live-stock  in  transit. 

The  liability  of  a  common  carrier  for  live-stock  is  not  as 
broad  as  it  is  for  goods.^  A  common  carrier  of  live-stock 
is  not  an  insurer  against  loss  or  injury  of  the  animals  due 
to  the  nature  of  the  beasts.^  A  carrier  who  accepts  live- 
stock for  transportation,  while  not  subject  to  the  common 
law  liabihty  of  common  carriers,  is,  however,  bound  to 
transport  the  stock  cars  and  animals  with  ordinary  care, 

1  Nelson  v.  Woodruff,  1  Black,  156 ;   Faucher  v.  Wilson,  68  N.  H.  338. 

*  Browne,  Carriers,  Chap.  VI.,  §  108. 

'  Wheeler,  Mod.  Law.  of  Carriers,  Chap.  IX. 

<  Erie  Ry.  v.  Wilcox,  84  111.  239 ;  So.  Exp.  Co.  v.  Kaufman,  12  Heisk. 
161. 

5  No.  Penn^  R.  R.  v.  Com'  Bank,  123  U.  S.  727 ;  Myrick  v.  Mich. 
Cent.  R.  R.,   107  id.   102. 

«  Louisville  &  N.  R.  R.  v.  Smitha,  145  Ala.  686 ;  Dow  v.  Portland 
Steam  Packet  Co.,  84  Me.  490;  Ayres  v.  Chic.  &  N.  W.  R.  R.,  71  Wia. 
372 ;   Squire  v.  N.  Y.  Cent.  R.  R.,  98  Mass.  239. 


Duties  of  Common  Carriers  321 

skill,  and  promptitude.^  If  cattle  shipped  in  good  condi' 
tion  arrive  at  destination  in  bad  condition,  it  is  for  the 
carrier  to  show  that  the  change  was  caused  by  something 
for  which  it  was  not  responsible.^  It  is  negligence 
in  and  of  itself  for  a  carrier  to  disobey  a  statute  requiring 
cattle  in  transit  after  twenty-eight  hours  of  confinement 
to  be  unloaded,  fed,  watered,  and  rested,  and  such  neglect 
makes  the  carrier  liable  in  damages  notwithstanding  the 
insertion  in  the  contract  of  carriage  of  a  stipulation  exempt- 
ing it  from  liability  in  case  it  violates  the  law.^  It  is  the 
duty  of  a  common  carrier  of  live-stock  to  furnish  bedding 
for  the  animals  whenever  bedding  is  needed  for  the  safe 
and  proper  transportation  of  the  beasts,  and  the  carrier 
is  not  excused  from  that  duty  by  the  shipper's  agreement  to 
load  and  unload  and  feed,  water,  and  care  for  the  stock 
on  the  journey.^  If  a  common  carrier,  knowing  a  shipper  of 
live-stock  has  failed  to  send  along  a  caretaker  as  agreed, 
still  undertakes  to  carry  the  animals  according  to  the 
shipping  contract,  it  assumes  the  duty  of  taking  proper  care 
of  the  beasts  and  guarding  them  from  injury.^  A  carrier 
transporting  hogs  liable  to  die  from  overheating  is  charged 
with  the  duty  of  now  and  then  cooling  them  by  showers ;  ® 
and  if  the  shipper  has  agreed  to  accompany  and  feed  and 
water  the  hogs  on  the  journey,  the  carrier  is  bound  to 
provide  the  water.^     A  railroad  company  carrying  hogs 

1  Heller  v.  Chic.  &  Gd.  T.  Ry.,  109  Mich.  53. 
'  C.  B.  &  Q.  R.  R.  V.  Slattery,  76  Neb.  721. 
'  Reynolds  v.  Gt.  Nor.  Ry.,  40  Wash.  163. 
*  Allen  V.  C.  B.  &  Q.  R.  R.,  82  Neb.  726. 
^  G.  B.  &  Q.  R.  R.  V.  Williams,  61  id.  608. 

«  Toledo,  W.  &  W.  R.  R.  v.  Hamilton,  76  111.  393 ;   Wallace  v.  Lake 
Shore  &  M.  S.  R.  R.,  133  Mich.  633. 

'  Wabash,  St.  L.  &  P.  R.  R.  v.  Pratt,  15  111.  App.  177. 
y 


322  Law  J  or  the  American  Farmer 

whose  train  crew,  aware  of  their  condition  and  the  need 
of  showering  the  animals,  on  reaching  a  junction,  shunts 
the  stock  cars  to  a  connecting  hne  and  a  train  depart- 
ing at  once,  well  knoAving  that  another  train  leaves  later 
in  the  day  after  an  interval  long  enough  for  the  shipper  to 
shower  the  hogs,  is  not  excused  from  liability  by  the  con- 
sent of  the  shipper  to  go  on  immediately  when  he  was 
ignorant  as  to  when  the  next  train  would  be  ready.  ^  When 
the  negligence  of  a  common  carrier  of  live-stock  causes 
miscarriages  in  cows  it  is  transporting,  the  loss  of  the  calves 
is  a  proper  item  of  damage  against  it  whether  it  had  or  had 
not  notice  when  the  shipment  was  made  that  the  cows 
were  pregnant.^  A  common  carrier  is  liable  for  animals 
destroyed  in  transit  by  a  fire  not  caused  by  the  act  of  God 
or  the  public  enemy.'  And  if  a  carrier  puts  next  to  the 
locomotive  a  live-stock  car  containing  straw  bedding 
which  takes  fire  from  sparks  from  the  locomotive  and  the 
animals  are  burned  to  death,  it  is  liable  because  of  its 
negligence,  notwithstanding  it  had  stipulated  in  the  bill 
of  lading  for  exemption  from  liability  in  case  of  loss  or 
damage  by  fire.^  A  carrier  who  puts  healthy  hve-stock 
in  cattle  cars  infected  with  Texas  fever  is  negligent  and 
liable  in  damages  if  the  beasts  become  infected.^ 

§  210.     Duty  respecting  perishable  property. 

A  carrier  must  be  dihgent  to  protect  freight  from  all 
loss  and  injury  which  may  be  averted  and  which  ordinary 

»  Peck  V.  Chic.  Gt.  West.  R.  R.,  16  L.  R.  A.  (N.  S.)  883. 
«  N.  Y.,  Lake  Erie  &  W.  R.  R.  v.  Estill,  147  U.  S.  591. 
3  Stiles  !).  Louisville  &  N.  R.  R.,  18  L.  R.  A.  (N.  S.)  86. 
*  McFadd^n  r.  Mo.  Pac.  R.  R.,  92  Mo.  343. 
»  lU.  Cent.  R.  R.  v.  Hams,  184  lU.  57. 


Duties  of  Common  Carriers  323 

care  and  intelligence  should  have  foreseen  and  guarded 
against.^  To  escape  Uability  for  delay  in  transporting 
and  delivering  perishable  freight  a  carrier  must  prove  dili- 
gence.2  A  carrier  is  bound  to  give  perishable  freight  a 
preference  over  other  freight  when  unable  to  forward  both 
at  once ;  ^  and  is  bound  to  take  notice  of  marks  on  the 
casings  indicating  the  nature  of  the  contents.^  A  common 
carrier  who  undertakes  to  transport  perishable  property 
in  refrigerator  cars  is  bound  to  keep  the  cars  properly 
supplied  with  ice  during  the  journey.^  If  the  ice  bunkers 
of  a  refrigerator  car  loaded  with  small  fruits  are  virtually 
empty  when  the  car  arrives  at  its  destination,  the  carrier's 
negligence  is  proved.^  A  carrier  of  perishable  commodities 
in  refrigerator  cars  is  bound  to  furnish  an  ample  supply 
of  ice  to  preserve  the  shipments  both  at  the  place  of  ship- 
ment and  all  along  the  route  during  the  time  usually 
required  for  transportation  with  all  incidental  delaysJ 
The  carrier's  liability  for  loss  of  perishable  freight  in 
refrigerator  cars  not  properly  nor  sufficiently  chilled  can- 
not be  escaped  by  showing  that  the  cars  were  leased  from 
another  company  which  had  agreed  to  keep  them  iced.^ 
A  railroad  company  cannot  escape  liability  for  a  breach 
of  its  duty  to  keep  properly  iced  a  refrigerator  car  used  to 
carry  fruit  by  obtaining  the  car  from  another  and  delegat- 

1  Beard  v.  111.  Cent.  R.  R.,  supra. 

2  Parker  v.  Atl.  Coast  Line  R.  R.,  133  N.  C.  335. 
5  Marshall  v.  N.  Y.  Cent.  R.  R.,  45  Barb.  502. 
^Hastings  v.  Pepper,   11  Pick.  41. 

"  Johnson  v.  Toledo,  S.  &  M.  Ry.,  133  Mich.  596. 
«  Taft  Co.  V.  Amer.  Exp.  Co.,  133  Iowa,  522. 
'  Ibid. 

«  N.  Y.,  P.  &  N.  R.  R.  V.  Cromwell,  98  Va.  227 ;   Mathis  v.  So.  R.  E., 
supra. 


324  Law  for  the  American  Farmer 

ing  to  that  other  the  duty  of  icing  it.^  Neither  can  a 
common  carrier  who  has  undertaken  to  renew  ice  at  speci- 
fied stations  in  a  refrigerator  car  containing  perishable 
produce  escape  HabiUty  for  damage  to  the  shipment  by 
neglect  by  taking  refuge  behind  a  rule  not  to  add  ice  unless 
the  bunkers  will  take  six  hundred  pounds  of  it.^  But  a 
carrier  is  not  negligent  in  following  a  general  custom  not 
to  change  ventilators  on  fruit  cars  without  instructions 
from  the  shipper,  although  a  failure  to  do  so  causes  the  loss 
of  the  fruit  by  frost .^ 

1  St.  Louis,  I.  M.  &  So.  R.  R.  v.  Renfroe,  supra. 

2  Orem  Fruit  &  Prod.  Co.  v.  Nor.  Cent.  Ry.,  106  Md.  1. 

3  Schwartz  v.  Erie  R.  R.,  15  L.  R.  A.  (N.  S.)  801. 


CHAPTER  XXVIII 

RIGHTS   AND    IMMUNITIES   OF   COMMON    CARRIERS 

§§  211-215 

§  211.     Right  to  make  rules  and  regulations. 

There  are  two  methods  by  which  a  common  carrier  may 
hmit  or  evade  its  common  law  HabiUty  as  an  insurer  of  the 
freight  it  undertakes  to  transport.  One  is,  of  course,  by 
special  contract  with  the  shipper,  as  mentioned  below,  and 
the  other  is  by  means  of  rules  and  regulations  adopted  for 
conduct  of  its  business.  Common  carriers  have  a  right 
to  adopt  and  enforce  all  proper  and  reasonable  regulations 
for  the  carrying  on  of  their  operations  that  make  for  their 
own  protection  and  the  pubhc  benefit  as  between  them- 
selves and  their  patrons.^  These  rules  and  regulations 
must  be  reasonable  ones;  regulations  adopted  by  a  com- 
mon carrier  which  are  unreasonable  are  null  and  void.^ 
The  right  to  make  and  enforce  proper  and  reasonable  rules 
to  facilitate  the  movement  of  trains  of  freight  and  passen- 
gers, conserve  the  welfare  and  safety  of  the  public,  and 
afford  the  greatest  measure  of  useful  service  to  its  pa- 
trons is  an  important  feature  of  the  operations  of  a  railroad 
company,  and  when  the  rules  adopted  are  fairly  adapted 

1  Miller  v.  Ga.  R.  R.  &  Bank'g  Co.,  88  Ga.  563. 

»  Pittsb.  C.  &  St.  L.  Ry.  ;•.  Lyon,  123  Pa.  St.  140. 

325 


326  Law  for  the  American  Farmer 

to  one  or  more  of  these  ends,  the  pubHc  is  bound  by  them 
unless  they  contravene  some  positive  statute. 

§  212.     Limitation  of  liability  by  special  contract. 

The  common  law  general  liability  of  a  common  carrier 
may  be  restricted  by  a  vahd  agreement  between  the  carrier 
and  the  shipper.^  This  may  be  done  in  all  ordinary  cases.^ 
Unless  forbidden  to  do  so  by  a  constitutional  provision 
or  an  express  statute,  a  common  carrier  may  limit  its 
liability  for  loss  or  damage  to  goods  transported,  so  far  at 
least  as  such  loss  or  injury  is  not  due  to  its  own  misconduct 
or  gross  negligence,  by  a  special  contract  fairly  made  and 
reasonable  in  its  terms. ^  Such  a  contract  must  be  fairly 
entered  into,  be  plain  in  its  terms,  and  in  other  respects  be 
reasonable  to  be  upheld  in  the  courts.^  A  common  carrier 
may  lawfully  stipulate  for  exemption  from  liabilit}^  for  loss 
or  damage  to  property  carried  caused  by  strikes  or  mobs,^ 
or,  in  consideration  of  a  reduced  freight  rate,  on  account 
of  wetting.^  A  carrier  may  also  lawfully  contract  with 
a  shipper  to  be  exempt  from  liabihty  for  loss  or  damage 
to  freight  unless  the  claim  is  presented  within  a  stated 
limited  time.''     The  hmit  fixed  must  be  a  reasonable  one 

1  Kirby  v.  West.  U.  Tel.  Co.,  4  S.  Dak.  105. 

*  So.  Exp.  Co.  V.  Caldwell,  21  Wall.  264;  Bank  of  Ky.  v.  Adams  Exp. 
Co.,   93   U.   S.    174. 

3  Atchison,  T.  &  S.  Fe  R.  R.  v.  Temple,  47  Kan.  7  ;  Russell  v.  Erie  R.  R. 
70  N.  J.  L.  808. 

*  Adams  Exp.  Co.  v.  Carnahan,  29  Ind.  App.  606 ;  McFadden  v.  Mo. 
Pac.  Ry.,  92  Mo.  343. 

6  Gulf,  C.  &  S.  F.  R.  R.  V.  Gatewood,  79  Tex.  89. 
«  Meers  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  75  Conn.  171. 
^  So.  Exp.  Co.  V.  Hunnicutt,  54  Miss.  566 ;    U.  S.  Exp.  Co.  v.  Harris, 
51    Ind.    127. 


Rights  a7id  Immunities  oj  Common  Carriers     327 

and  afford  opportunity  to  the  shipper  to  present  his 
claims;  otherwise  the  courts  will  refuse  to  respect  it.' 
The  courts  do  not  agree  upon  what  is  a  reasonable 
time  limit  in  such  cases.  As  respects  ordinary  freight, 
ninety  days  was  deemed  reasonable  in  one  case  ^  and  un- 
reasonable in  another.^  In  another  case  thirty  days 
was  held  too  short,*  but  plenty  long  enough  in  other 
cases.^  With  respect  of  Uve-stock  a  limit  as  short  as  one 
day  has  been  held  reasonable  in  some  cases,^  and  in 
several  cases  a  stipulation  of  the  carrier  requiring  no- 
tice to  the  nearest  station  agent  of  a  claim  for  damages 
to  be  made  before  the  shipment  has  been  delivered  to  the 
consignee  or  mingled  with  other  stock  has  been  held  valid 
and  reasonable. '^  Common  carriers  are  not  permitted  to 
contract  for  exemption  from  liability  for  lost  or  injured 
freight  due  to  their  o"\\ti  wrongful  acts  ^  or  negligence,^ 
especially   not    gross  neghgence  or  willful  misconduct.'" 

1  Mo.  Pac.  R.  R.  V.  Harris,  67  Tex.  166. 

2  So.  Exp.  Co.  V.  Caldwell,  supra. 

3  Porter  V.  So.  Exp.  Co.,  4  S.  Car.  135. 
*  So.  Exp.  Co.  V.  Caperton,  44  Ala.  101. 

5  Smith  V.  Dinsmore,  9  Daly,  188  ;  Hirshberg  v.  Dinsmore,  12  id.  429  ; 
Kaiser  v.  Hoey,  1  N.  Y.  Supp.  429. 

«  Mo.  Pac.  R.  R.  V.  Park,  66  Kan.  248 ;  Kan.  &  A.  Val.  R.  R.  v.  Aryea, 
63  Ark.  .331. 

''  Mo.,  Kan.  &  Tex.  R.  R.  v.  Kirkham,  63  Kan.  255;  Owen  v.  Louis- 
ville &  N.  R.  R.,  87  Ky.  626 ;  Baxter  v.  Louis.,  N.  A.  &  C.  R.  R.,  165  111. 
78;    Hudson  v.  Nor.  Pac.  R.  R..  92  Iowa,  231. 

8  Baker  v  Bost.  &  Me.  R.  R.,  74  N.  H.  100. 

9  Penn?.  R.  R.  v.  Raiordon,  119  Pa.  St.  577;  Mo.  Pac.  Ry.  t).  Ivy,  71 
Tex.  409 ;  Russell  v.  Pittsb.  C.  C.  &  St.  R.  R.,  157  Ind.  305 ;  Bird  v. 
The  R.  R.'s,  99  Tenn.  719 ;  Witting  v.  St.  Louis  &  S.  F.  R.  R.,  101  Mo. 
631. 

">  Chic.  &  No.  W.  Ry.  v.  Chapman,  133  111.  96 ;  Johnson  v.  Ala.  &  Vicka 
Ry.,  69  Miss.  191 ;   Meuer  v.  Chic.  M.  &  St.  P.  Ry.,  5  S.  Dak.  568. 


328  Law  for  the  American  Farmer 

This  rule  applies  as  well  to  live-stock  as  to  other  freight.' 
Contracts  by  which  common  carriers  seek  to  exempt  them- 
selves from  the  consequences  of  their  owm  faults  and  negli- 
gence are  contrary  to  pubhc  policy  and  therefore  void.^ 
A  stipulation  made  by  a  carrier  exempting  itself  from 
common  law  Uabilities,  where  the  shipper  is  given  no  option 
l)ut  to  consent  by  the  refusal  of  the  carrier  to  receive  the 
freight  on  any  other  terms  whatever,  has  several  times 
been  held  void  in  different  states.^  A  reduced  freight 
rate  for  the  carriage  of  cattle  is  a  good  consideration  for 
a  stipulation  limiting  the  carrier's  liability  to  a  stated  sum 
less  than  the  value  of  each  beast.^  But  if  reduced  rates 
are  not  offered  and  the  shipper  is  not  allowed  to  ship  upon 
terms  of  common  law  liability,  a  stipulation  relieving  the 
carrier  from  liabihty  on  account  of  fire,  for  instance,  will 
not  be  deemed  valid.^  There  are  some  states  in  which  the 
constitutions  forbid  the  liability  of  railroad  corporations 
as  common  carriers  to  be  limited  at  all.  In  those  states 
the  special  contracts  spoken  of  are  nullities.^  And  when 
a  statute  invalidates  carrier's  contracts  for  exemption 
from  liability  for  the  loss  of  property  carried,  all  contracts 
limiting  the  liability  of  a  common  carrier  for  property  lost 
while  in  its  possession  are  void.'^ 

1  Chic,  R.  I.  &  Pac.  R.  R.  v.  Witty,  32  Neb.  275 ;  Louis.  &  N.  R.  R. 
r.  Dies,  91  Tenn.  177. 

2  Chic,  M.  &  St.  P.  R.  R.  v.  Solan,  169  U.  S.  133 ;  Bait.  &  O.  R.  R. 
I).  Voigt,  176  id.  498 ;    Knott  v.  Botany  Worsted  Mills,  179  id.  69. 

3  Little  Rock  &  Ft.  S.  R.  R.  v.  Cravens,  57  Ark.  112;  L.  E.  &  West 
R.  R.  V.  Holland,  162  Ind.  406  ;  Parker  v.  Atl.  Coast  Line  R.  R.,  133  N.  C. 
335;    Kirby  v.  West.  U.  Tel.  Co.,  supra. 

*  Winslow  Bros.  &  Co.  v.  xUl.  Coast  Line  R.  R.,  65  S.  E.  Rep.  965. 

*  Louisville  &  N.  R.  R.  v.  Gilbert,  88  Tcnn.  430. 

«  Latta  V.  Chic,  St.  P.,  M.  &  O.  Ry.,  172  Fed.  Rep.  850. 
7  Chesapeake  &  O.  R.  R.  v.  Beasley,  104  Va.  788. 


Rights  and  Immuriities  of  Common  Carriers     329 

§  213.     Bill  of  lading  as  a  contract  for  carriage. 

A  bill  of  lading  has  a  dual  character.  It  is  both  a  receipt 
and  a  contract  —  a  receipt  for  property  to  be  transported 
and  a  contract  to  transport  such  property  and  deliver  it  to 
the  consignee.^  A  receipt  is  usually  not  conclusive;  it 
is  not  within  the  rule  excluding  oral  testimony  to  vary  a 
writing.2  ^he  reason  is  that  an  ordinary  receipt  is  only  an 
admission  or  acknowledgement  of  one  person  and  not  a 
contract.^  A  simple  receipt  not  embodying  a  contract 
is  open  to  oral  explanation,^  but  when  a  receipt  is  coupled 
with  or  contains  a  contract,  the  contract  part  of  it  is 
governed  by  the  same  rules  that  apply  to  other  contracts.^ 
In  so  far,  then,  as  a  bill  of  lading  is  a  receipt  for  property, 
it  is,  hke  other  receipts,  open  to  explanation  and  con- 
tradiction respecting  the  kind,  quantity,  and  condition 
of  the  property  for  which  it  is  issued.*'  Thus,  if  property  is 
shipped  in  barrels  or  boxes  or  otherwise  covered  so  that 
it  is  not  visible,  the  carrier  can  only  be  held  hable  for  the 
actual  contents  of  the  packages,  no  matter  what  name 
is  given  to  them  in  the  bill  of  lading.^  But  beside  being 
a  receipt  for  property,  a  bill  of  lading  issued  by  a  common 
carrier  for  property  received  for  transportation  constitutes 
the  contract  for  carriage,  and  the  shipper  by  accepting 

1  St.  Louis,  I.   M.  &  So.   R.   R.  v.   Knight,   122  U.  S.  79 ;  Merch*'" 
Dispatch  Transp.  Co.  v.  Furthmann,   149  111.  66. 

2  D.  M.  Osborne  Co.  v.  Stringham,  4  S.  Dak.  593. 

3  Wolf  V.  Philadelphia,  105  Pa.  St.  25 ;  Kenny  v.  Kane,  50  N.  J.  Law 
562 ;  Pendexter  v.  Carleton,  16  N.  H.  482. 

•  Davison  v.  Davis,  125  U.  S.  90. 

•  Cummings  v.  Baars,  36  Minn.  350. 

•  Morganton  Mfg.  Co.  v.  Ohio  River  &  C.  Ry.,  121  N.  C.  514. 
1  Miller  v.  Hannibal  &  St.  Jo.  R.  R.,  90  N.  Y.  430. 


330  Law  for  the  American  Farmer 

it  becomes  bound  by  its  terms;  ^  and  constituting  a 
contract,  it  is  not  open  to  contradiction  or  alteration  by 
oral  testimony .2  As  is  the  case  respecting  all  other  con- 
tracts, a  bill  of  lading  binds  a  shipper  to  its  lawful  terms 
whether  he  reads  it  or  not.  It  is  his  duty  to  read  it  and 
inform  himself  of  its  contents.^  If  bills  of  lading  are 
ambiguous  in  language,  they  are  construed  favorably  to 
the  shipper  and  strictly  as  respects  the  carrier.^  All 
stipulations  inserted  in  bills  of  lading  prepared  and  issued 
by  common  carriers,  exempting  them  from  or  restricting 
their  common  law  liabilities,  are  construed  strictly  against 
the  carriers.-''  An  exemption  of  the  carrier  from  liabilitj'' 
for  loss  or  damage  by  fire  expressly  given  in  a  bill  of  lading 
relieves  the  carrier.®  A  common  carrier  may  properly 
include  in  a  bill  of  lading  a  requirement  that  notice  of  loss 
be  given  to  it  within  a  reasonable  time  afterwards  as  a 
condition  of  its  liabihty.''  A  carrier  may,  as  to  certain 
kinds  of  freight,  stipulate  in  the  bill  of  lading  to  accept  it 
solely  at  the  owner's  risk  and  thereby  relieve  itself  from 
liability  for  loss  or  damage  except  when  due  to  its  own 
misconduct,  fault,  or  negligence.^  As  a  general  rule  a 
shipper  is  not  bound,  unless  specially  inquired  of,  to  inform 
the  carrier  of  the  value  or  valuable  character  of  offered 

1  Davis  V.  Cent.  Vt.  R.  R.,  66  Vt.  290. 

2  McElveen  v.  So.  Ry.,  109  Ga.  249. 

'  Grace  v.  Adams,  100  Mass.  505 ;  Snider  v.  Adams  Exp.  Co.,  63  Mo. 
376. 

4  Ala.  Gt.  So.  R.  R.  v.  Thomas,  89  Ala.  294. 

'  Queen  of  the  Pacific  case,  180  U.  S.  49. 

«  Cau.  V.  Texas  &  Pac.  R.  R.,  194  id.  427. 

'  Gwyn-Harper  Mfg.  Co.  v.  Carolina  Cent.  R.  R.,  128  N.  C.  280. 

8  Kiff  V.  Atch.,  T.  &  S.  Fe  R.  R.,  32  Kan.  263 ;  Moore  v.  Evans,  14 
Barb.  524. 


Rights  and  Immunities  of  Common  Carriers     331 

freight/  but  if  he  is  asked  to  state  the  value  and  does  so, 
and  that  value  is  inserted  in  the  bill  of  lading  as  the  basis 
of  the  contract  for  transportation,  the  figures  are  conclu- 
sive.- A  common  carrier  is  almost  always  held  to  have 
the  right  to  limit  by  contract  with  the  shipper  the  sum 
for  which  he  shall  be  liable  in  case  the  freight  is  destroyed 
or  lost,^  especially  when  it  is  fragile,  perishable,  or  easily 
injured.  Such  a  hmit,  however,  is  not  respected  in  case 
a  loss  occurs  by  the  carrier's  own  neghgence.^  It  has  been 
decided  that  a  shipper  cannot  be  obhged  to  insure  his 
,  shipment  for  the  carrier's  benefit,  and  that  a  stipulation 
in  a  bill  of  lading  requiring  him  to  do  so  is  void.^  A  bill 
of  lading  does  not  supersede  a  prior  contract,  even  an  oral 
one,  between  the  shipper  and  the  carrier  under  which  the 
shipper  delivered  his  property  to  the  carrier  for  trans- 
portation.^ This  is  only  an  application  of  the  established 
principle  that  one  party  to  a  contract  cannot  change  it 
without  the  other's  consent.  Writing  a  bill  of  lading  with 
a  lead  pencil  does  not  affect  its  validity.'^ 

§  214.     Concerning  perishable  property. 

An  exception  to  the  rule  that  a  carrier  is  liable  as  an 
insurer  for  the  loss  of  property  intrusted  to  it  for  trans- 
portation relates  to  goods  lost  in  virtue  of  their  own  natural 

1  Wheeler,  Mod.  Law  of  Carriers,  Chap.  IX. 

2  Coupland  v.  Housatonic  R.  R.,  61  Conn.  531 ;  LTllman  v.  Chicago  & 
N.  W.  R.  R.,  112  Wis.  150 ;   Duntley  v.  Bost.  &  Me.  R.  R.,  66  N.  H.  263. 

3  Wheeler,  Mod.  Law  of  Carriers,  Chap.  V. 
*  Lang  V.  Penn'a  R.  R.,  154  Pa.  St.  342. 

6  Willock  21.  Penn'a  R.  R.,  166  id.  184. 

6  St.  Louis  S.  W.  Ry.  v.  Elgin  Milk  Co.,  175  111.  557. 

»  Main  :;.  Jarrett,   83  Ark.  426. 


332  Law  for  the  American  Farmer 

tendency  to  decay.^  A  carrier  is  not  liable  for  damage 
to  perishable  freight  caused  by  its  intrinsic  defects.^ 
Perishable  property  in  the  legal  sense  is  property  which 
by  nature  speedily  decays.^  It  is  such  property  as  rapidly 
decomposes  or  decays  and  so  undergoes  changes  of  form 
and  quahty  which  render  it  unsuitable  for  use  and  value- 
less.* This  includes  potatoes  ^  and  many  kinds  of  fruit  and 
vegetables/  but  does  not  include  well-cured  hay  ^  nor  sound, 
mature,  and  merchantable  corn.^  Yet  corn  in  general  must 
be  deemed  perishable  property  within  the  meaning  of  a 
statute  regulating  the  mode  of  disposing  of  perishable 
property  by  a  common  carrier  when  the  consignee  declines 
to  accept  delivery.^  A  carrier  is  justified  in  selling  perish- 
able property  which  the  consignee  refuses  to  accept  and  the 
consignor  after  notice  abandons.^''  But  a  common  carrier 
who  sells  perishable  property  in  transit  without  notice  to 
the  consignor  or  waiting  for  his  orders,  if  there  is  time  and 
opportunity  to  give  notice  and  receive  orders,  merely  be- 
cause traffic  on  the  fine  is  suspended  because  of  a  strike,  is 
liable  for  the  value.^'^ 

§  215.     Concerning  drovers  accompanying  live-stock. 

Common  carriers  have  endeavored  to  escape  liability 
for  injuries  sustained  by  drovers  in  charge  of  live-stock 

•  Georgia  R.  R.  v.  Spears,  66  Ga.  485. 

2  Evans  v.  Fitchburg  R.  R.,  Ill  Mass.  172. 
'  Webster  v.  Peck,  31  Conn.  495. 

*  Jolley  V.  Hardeman,  111  Ga.  749.         ^  Williams  v.  Cole,  16  Me.  207. 
«  111.  Cent.  R.  R.  v.  McClellan,  54  111.  58. 

'  Newman  v.  Kane,  9  Nov.  234. 

»  111.  Cent.  R.  R.  v.  McClellan,  supra. 

9  Chesapeake  &  O.  R.  R.  v.  Saulsberry,  12  L.  R.  A.  (N.  S.)  431. 
10  Dudley  v.  Chicago,  M.  &  Pt.  P.  Ry.,  58  W.  Va.  604. 
"  Louis\nlle  &  N.  R.  K.  v.  Odil,  9G  Tenn.  61. 


Rights  and  Immunities  of  Common  Carriers     333 

transported  by  means  of  special  contracts  embodied  in 
passes  issued  as  tokens  of  tiie  drovers'  right  to  be  carried 
on  the  trains.  A  drover's  pass  issued  to  a  person  in  charge 
^i  cattle  transported  by  a  common  carrier  is,  according 
to  the  courts,  really  a  part  of  the  contract  for  the  trans- 
portation of  the  stock  and  is  more  a  passenger  ticket 
than  a  pass.  The  holder  is  not  a  free  traveler  but  a 
passenger  for  hire.^  A  drover  traveling  on  a  stock  pass 
is  a  paying  passenger  within  the  rule  forbidding  common 
carriers  to  contract  for  exemption  from  liability  for  the 
consequences  of  their  own  negligence.^  Stipulations  in 
a  drover's  pass  exempting  the  carrier  from  liability  for 
negligently  injuring  the  holder  are  void.^  A  shipper  of 
live-stock  by  rail  who  receives  and  uses  a  drover's  pass  in 
order  to  accompany  and  care  for  his  stock  during  transit 
does  not  in  legal  effect  become  the  servant  of  the  carrier 
nor  a  fellow-servant  of  the  train  crew.*  He  has  all  the 
rights  of  a  paj^ng  passenger,  and  the  carrier  owes  him  the 
same  duties.^  A  contract  of  a  drover  in  charge  of  cattle 
undergoing  transportation  on  a  railroad,  by  which  he  agrees, 
in  consideration  of  a  free  pass,  to  be  considered  the  same 
as  an  employee  of  the  road,  to  whom  the  railroad  compary 
shall  be  liable  only  as  it  is  liable  to  its  regular  employees, 
is  a  mere  pretense  or  subterfuge  which  does  not  change 
the  real  relations  of  the  carrier  and  the  drover.^ 

»  Norfolk  &  W.  R.  R.  v.  Tanner,  100  Va.  379 ;   St.  Louis  S.  W.  R.  R. 
V.  Nelson,  44  S.  W.  179. 

2  Lake  Shore  &  M.  S.  R.  R.  v.  Teeters,  166  Ind.  335. 

3  Davis  V.  Chicago,  M.  &  St.  P.  R.  R.,  93  Wis.  470. 
*  Omaha  &  R.  Val.  R.  R.  v.  Crow,  54  Neb.  747. 

6  111.  Cent.  R.  R.  v.  Beebe,  174  111.  13. 
«  Mo.  Pac.  R.  R.  V.  Ivy,  71  Tex.  409. 


CHAPTER  XXIX 

INSURANCE  OF  PROPERTY  AGAINST  FIRE  AND  OTHER  LOSSES 

§§  216-233 

§  216.     The  nature  of  insurance. 

Insurance  may  be  defined  as  a  contract  by  which  one 
of  the  contracting  parties,  in  consideration  of  a  payment 
called  a  premium,  engages  to  pay  the  other  a  sum  of  money 
upon  the  occurrence  of  a  contemplated  event.  That 
event  may  be  one  certain  sooner  or  later  to  happen,  such 
as  death,  or  one  only  likely  to  occur,  such  as  a  fire,  but  it 
is  always  one  of  which  the  time  of  its  occurrence  cannot 
be  foretold.  Every  policy  of  insurance  is  a  contract  of 
indemnity  by  which  the  insurer  undertakes  to  make  good 
a  loss  which  the  insured  may  sustain  under  certain  specified 
conditions  from  certain  named  causes  not  exceeding  a 
stated  amount.^  It  is  a  contract  whereby  one  agrees  to 
indemnify  another  in  whole  or  in  part  for  a  loss  or  damage 
from  a  specified  peril. ^  It  is  of  the  very  essence  of  insur- 
ance, and  forms  the  principal  foundation  of  the  contract, 
according  to  one  authority,^  that  the  insurer  takes  upon 

>  Imperial  F.  Ins.  Co.  v.  Coos.  Co.,  151  U.  S.  452;  State  v.  Pittsburg, 
C.  C.  &  St.  L.  Ry.,  68  Ohio  St.  9. 

2  Shakman  v.  U.  S.  Credit  System,  92  Wis.  366. 
'  Joyce,  Insurance,  §  16. 

334 


Insurance  against  Fire  and  Other  Losses    335 

himself  the  peril  which  the  property  or  interest  of  the 
insured  is  liable  to  encounter.  The  same  general  principles 
control  in  reference  to  the  liabihty  of  insurers  and  the 
rights  of  the  insured  against  whatever  casualty  indemnity 
is  contracted  for  except  so  far  as  they  are  modified  by  the 
subject  matter,  peculiar  usages  and  customs,  and  the  con- 
tracts themselves.^ 

§  217.     The  insurance  contract  and  its  elements. 

The  parties  to  a  contract  of  insurance  are  the  insurer 
and  the  insured.  The  former  is  often  called  the  under- 
writer and,  as  most  insurance  contracts  are  made  by  cor- 
porations, is  usually  spoken  of  as  the  company.  The 
contract  of  insurance  is  usually  a  written  one  called  a  poHcy, 
and  the  insured  is  known  as  the  policy-holder.  In  every 
fire  insurance  contract  there  must  be  present  and  are 
essentially  necessary  to  its  validity  certain  elements  mutu- 
ally agreed  upon  by  the  insurer  and  the  insured  of  which 
the  absence  of  any  one  is  fatal.  These  elements  are  a 
subject  matter  of  which  the  destruction  or  damage  would 
entail  a  loss  to  the  insured;  a  danger  or  risk  of  that  sub- 
ject matter  insured  against ;  a  fixed  limit  of  the  am  cunt 
of  indemnity  to  be  paid  in  case  the  contemplated  lo.-s 
occurs ;  a  time  during  which  the  insurer  is  to  be  liable 
on  the  contract ;  and  a  consideration,  called  the  premium, 
paid  or  promised  by  the  insured  in  such  wise  as  to  consti- 
tute a  legal  obligation  on  his  part.^  The  contract  may 
be  oral  or  written.  An  agreement  to  insure  property 
need  not  be  in  writing  in  order  to  bind  the  insurer.^     Oral 

»  Wood,  Fire  Ins.,  Chap.  I.,  §  1. 

2  Tyler  v.  New-Amsterdam  Ins.  Co.,  4  Robt.  (N.  Y.)  161. 

»  Ruggles  V.  Amer.  Cent.  Ins.  Co.,  114  N.  Y.  416. 


336  Law  for  the  American  Farmer 

contracts  of  insurance  are  valid  ^  if  complete  and  definite 
in  their  terms.^  They  are  good  unless  some  statute  or 
positive  regulation  prohibits  them,^  and  if  not  forbidden 
by  some  provision  in  the  charter  of  the  insuring  company 
brought  to  the  knowledge  of  the  insured.*  But  inasmuch 
as  written  policies  of  insurance  are  almost  universally 
used,  it  is  a  legal  presumption  when  no  policy  has  been 
written  and  no  premium  paid  that  no  contract  of  insur- 
ance has  been  made.* 

§  218.     Completing  the  contract. 

In  general  a  contract  for  fire  insurance  is  regarded  as 
complete  when  all  its  terms  have  been  agreed  upon  between 
the  underwriter  and  the  applicant  for  insurance  and  noth- 
ing remains  to  be  done  but  to  dehver  the  policy.^  As  soon 
as  the  terms  of  a  contract  of  insurance  have  been  definitely 
settled  by  the  insurer  and  insured,  the  rights  and  obligations 
of  both  are  fixed  without  a  delivery  of  the  policy  unless  a 
delivery  is  either  a  part  of  the  contract  or  is  required  by 
law  for  the  insurance  to  be  valid.^  But  if  pre-payment 
of  the  premium  is  not  made  nor  the  policy  delivered  with- 
out requiring  it,  a  contract  of  fire  insurance  is  not  effected, 
unless  an  oral  one  is  complete,  by  a  mere  notice  to  the  ap- 
plicant from  the  agent  of  the  insurer  that  the  policy  is 

'  Sanford  v.  Orient  Ins.  Co.,  174  Mass.  416;  Croft  v.  Hanover  Ins. 
Co.,  40  W.  Va.  508 ;   West.  Assur.  Co.  «.  McAIpin,  23  Ind.  App.  220. 

2  King  V.  Phcenix  Ins.  Co.,  195  Mo.  290;  Whitman  v.  Milwaukee  F. 
Ins.  Co.,   128  Wis.   124. 

3  Relief  F.  Ins.  Co.  v.  Shaw,  94  U.  S.  574 ;  Com.  Mut.  M.  Ins.  Co.  v. 
Union  Mut.  Ins.  Co.,  19  How.  318. 

<  Newark  Mach.  Co.  v.  Kenton  Ins.  Co.,  50  Ohio  St.  549. 
'  Equitable   L.   Assur.    Soc.   v.    McElroy,   83   Fed.    631 ;    Heiman  v. 
Ph<piiix  Ins.  Co.,  17   Minn.   153.         *  Stephenson  v.  Allison,  51  So.  622. 
'  West.  Assur.  Co.  v.  McAlpin,  23  Ind.  App.  220. 


Insurance  against  Fire  and  Other  Losses    337 

ready.'  A  receipt  for  the  premium  goes  to  prove  that  a 
contract  for  insurance  was  made.^  The  mere  signing  of 
an  application  for  insurance,  followed  by  a  statement  by 
the  agent  that  he  would  see  to  it,  would  take  care  of  it  so 
that  it  would  be  all  right,  and  would  get  the  policy,  does 
not  complete  the  contract.^  An  oral  contract  of  insurance 
is  not  completed  by  an  understanding  as  to  terms,  time, 
amount,  premium,  and  risk  between  an  applicant  for  fire 
insurance  and  an  agent  of  two  or  more  companies  without 
an  agreement  upon  the  particular  company.^  A  "binding 
slip"  containing  a  memoranda  of  the  parties  to  a  contract 
of  insurance,  the  subject  of  it,  and  the  principal  terms,  "to 
be  binding  until  the  poUcy  is  dehvered,"  is  a  contract  of 
temporary  insurance  subject  to  the  terms  and  conditions  in 
the  ordinary  policy  issued  by  the  insuring  company.^ 

§  219.     The  policy. 

The  relation  between  an  insurance  company  and  its 
policj^-holder  is  merely  one  of  contract  in  which  the  respec- 
tive rights  and  obligations  of  insurer  and  insured  are 
measured  by  the  language  of  the  policy.^  Insurance 
companies  have  all  the  rights  of  individuals  in  making  their 
contracts  to  limit  their  liabilities  and  to  impose  whatever 
conditions  they  please  upon  their  obligations  not  incon- 
sistent with  statutes  and  pubhc  policy.^    An  insurance 

>  Wainer  v.  Milford  F.  Ins.  Co.,  153  Mass.  .335. 

'  Lightbody  v.  No.  Amer.  Ins.  Co.,  23  Wend.  18. 

'  Whitman  v.  Milwaukee  F.  Ins.  Co.,  supra. 

*  Hartford  F.  Ins.  Co.  v.  Trimble,  117  Ky.  583. 

'  Lipman  v.  Niagara  Ins.  Co.,  121  N.  Y.  454. 

«  Uhlman  v.  N.  Y.  L.  Ins.  Co.,  109  N.  Y.  421. 

^  Dumas  v.  N.  W.  Nat.  Ins.  Co.,  12  Dist.  Col.  App.  245. 


338  Law  for  the  American  Farmer 

company  has  a  right  to  fix  the  terms  on  which  it  will  take 
a  risk,  and  when  those  terms  have  been  accepted  by  an 
applicant  for  insurance,  a  contract  results  which  courts 
are  powerless  to  change.^  It  is  not  practicable  in  a  work 
of  this  character  nor  would  it  be  useful  to  mention  all  the 
clauses  in  fire  insurance  policies  which  have  been  passed 
upon  in  the  courts  as  effective  to  discharge  or  limit  the 
liabilities  of  insurers.  An  author  of  authority  has  re- 
marked that  if  the  strict  rules  of  law  are  apphed,  the  cases 
are  probably  few  in  which  a  recovery  may  be  had  upon  an 
ordinary  fire  insurance  policy  if  proper  objections  are  taken, 
but,  he  thinks,  insurance  companies  generally  conduct 
their  business  with  a  fair  regard  to  the  rules  of  morality 
and  do  not  contest  cases  free  from  suspicion  on  grounds 
merely  technical.  This  is  because,  for  one  reason,  to  do 
otherwise  tends  to  destroy  the  credit  of  underwriters  with 
business  men,  and  so  to  impair  their  business  as  to  subject 
them  to  more  serious  losses  then  those  resulting  from  pay- 
ments to  the  insured.^  A  poHcy  of  insurance  is  purely  a 
personal  contract  between  insurer  and  insured  and  extends 
to  no  other  persons.^  A  mistake  in  the  name  of  a  person 
insured  does  not  invalidate  the  policy.^ 

§  220.     Delivery  and  acceptance  of  policy. 

A  policy  of  insurance  duly  mailed  to  the  insured  is  de- 
livered.^    Mailing  a  policy  of  fire  insurance  to  the  insured 

1  Md.  Casualty  Co.  v.  Chew,  122  S.  W.  642. 
»  Wood,  Fire  Ins.,  Chap.  I.,  §  2. 

3  Farmers'  &  M.  Ins.  Co.  v.  Jensen,  56  Neb.  284 ;   Shadgett  v.  Phillips 
&  Crew  Co.,  131  Ala.  478. 

<  Romano  v.  Concordia  F.  Ins.  Co.,  106  N.  Y.  Supp.  63. 
'  Dailey  v.  Pref.  Masonic  Acci.  Asso.  102  Mich.  289. 


Insurance  against  Fire  and  Other  Losses    339 

completes  the  delivery,  and  if  a  fire  loss  within  its  terms 
occurs  before  the  insured  actually  receives  the  poHcy  in 
his  hands,  the  loss  is  covered  by  it.^  Like  other  contracts, 
a  fire  insurance  policy  binds  the  poUcy-holder  who  accepts 
it  whether  he  does  or  does  not  read  it.^  The  acceptance 
of  a  fire  insurance  policy  charges  the  insured  with  notice 
of  its  contents  and  binds  him  to  its  conditions.^  The  as- 
sent of  the  insured  to  the  provisions  of  a  policy  of  insur- 
ance is  conclusively  presumed  from  his  acceptance  of  it/ 
A  pohcy-holder  who  is  not  deceived  or  imposed  upon  by 
accepting  a  fire  insurance  policy  is  bound  to  comply  with 
every  lawful  provision  in  it,  under  penalty,  if  he  fails  to  do 
so,  of  losing  his  insurance.^  An  insured  is  not  bound  to 
accept  a  policy  which  does  not  cover  all  the  property  he 
applied  to  insure;  but  if  he  desires  it  corrected,  he  must 
return  it  promptly  and  ask  that  it  be  amended,  because  if 
he  keeps  it,  he  will  be  deemed  to  have  accepted  it.*^  An 
insurance  is  valid  without  payment  in  advance  of  the 
premium  if  credit  is  given  to  the  insured.^  If  neither  the 
application  for  nor  the  policy  of  insurance  requires  pre- 
payment of  the  premium  before  dehvery  of  the  poUcy, 
such  pre-payment  is  not  a  condition  precedent  to  the  in- 
surance taking  effect;  ^  the  delivery  of  the  pohcy  without 
collecting  the  premium  and  upon  an  agreement  for  deferred 
payment  puts  the  insurance  in  force  at  once.^      It  is  pre- 

1  Travelers  Fire  Ins.  Co.  v.  Globe  Soap  Co.,  85  Ark.  169. 

2  Wyandotte  Brew.  Co.  v.  Hartford  F.  Ins.  Co.,  144  Mich.  440. 

3  Parsons  v.  Lane,  97  Minn.  98. 

*  Allen  V.  Germ.  Amer.  Ins.  Co.,  123  N.  Y.  6. 
6  So.  Home  Ins.  Co.  v.  Putnal,  49  So.  922. 
6  Amer.  Ins.  Co.  v.  Dillahunty,  117  S.  W.  245. 
'  Croft  V.  Hanover  F.  Ins.  Co.,  40  W.  Va.  508. 

8  N.  Y.  Life  Ins.  Co.  v.  Greenlee,  84  N.  E.  1101. 

9  Dailey  v.  Pref.  Mas.  Aeei.  Asso.,  supra. 


340  Law  for  the  American  Farmer 

sumed  that  a  credit  was  intended  when  a  policy  of  in- 
surance is  delivered  without  requiring  the  premium  to  be 
paid  '  and  if  a  credit  is  intended,  the  policy  is  in  force  as 
soon  as  it  is  delivered.^ 

§  221.     Rules  for  construing  insurance  policies. 

A  policy  of  insurance  and  the  conditions  in  it  define  and 
fix  the  relations  of  the  insurer  and  insured  and  furnish  the 
measure  of  their  respective  rights  and  liabilities ;  courts 
may  not  go  outside  the  policy  in  determining  their  mutual 
or  reciprocal  obligations.^  The  written  prevail  over  the 
printed  parts  of  an  insurance  policy  in  case  of  repugnancy.* 
The  language  of  an  insurance  policy  is  to  be  understood, 
not  technically,  but  in  its  ordinary  and  popular  sense.^ 
Insurance  policies  prepared  by  insurers  are  construed 
strictly  against  the  underwriters  and  liberally  in  favor  of 
the  insured.^  If  the  meaning  is  doubtful,  the  meaning 
most  favorable  to  the  insured  is  adopted.''  This  rule  does 
not  apply  when  the  meaning  of  the  policy  is  perfectly  plain.^ 
Language  must  not  be  strained  to  favor  an  insured;  the 

1  Miller  v.  Brooklyn  L.  Ins.  Co.,  12  WaU.  285. 

2  Franklin  F.  Ins.  Co.  v.  Colt,  20  id.  560. 

3  Dover  Glass  W'ks  v.  Anier.  F.  Ins.  Co.,  65  Am.  St.  Rep.  264. 

*  Faust  V.  Amer.  F.  Ins.  Co.,  91  Wis.  158;  Yoch  v.  Home  Ina.  Co., 
Ill  Cal.  503. 

'  Vorse  V.  Jersey  Plate  Glass  Ins.  Co.,  119  Iowa,  555;  Bader  v.  New 
Amsterdam  Co.,   102  Minn.   186. 

«  Conn.  F.  Ins.  Co.  v.  Jeary,  60  Neb.  338 ;  Burkheiser  v.  Mut.  Ace. 
Asso.,  61  Fed.  816  ;  Darrow  v.  Family  Fund  Soc,  116  N.  Y.  537 ;  Hagan 
V.  Scot.  U.  &  Nat.  Ins.  Co.,  186  U.  S.  423. 

'  Matthews  v.  Amer.  C.  Ins.  Co.,  154  N.  Y.  449 ;  Fenton  v.  Fidelity 
&  C.  Co.,  36  Ore.  383. 

*  Holmes  v.  Phenix  Ins.  Co.,  98  Fed.  240;  Thurston  v.  Burnett,  etc., 
F.  Ins.  Co.,  98  Wis.  476. 


Insurance  against  Fire  and  Other  Losses    341 

meaning  adopted  must  be  unforced.^  It  is  only  when  the 
meaning  of  a  fire  insurance  poUcy  is  dubious  that  it  must  be 
construed  favorably  to  the  insured.  If  its  wording  is  clear 
and  unambiguous,  it  must  be  given  effect  as  it  reads  and  ac- 
cording to  the  plain,  ordinary  sense  of  the  words.^  An  in- 
surance policy  must  be  reasonably  construed  ;  courts  have 
no  power  to  make  the  contract  over  for  the  parties.'  For- 
feitures are  not  looked  upon  with  favor  in  the  law  and  will 
be  enforced  only  when  the  language  of  the  contract  admits 
of  no  escape.     This  rule  applies  to  insurance  policies.* 

§  222.     Representations  and  warranties  by  insured. 

A  stipulation  in  an  insurance  policy  rendering  it  void 
if  any  statement  in  the  application  for  it  proves  to  be  un- 
true is  a  proper  and  reasonable  one.^  If  a  policy  of  insur- 
ance provides  that  it  shall  be  void  if  any  question  in  the 
appUcation  is  answered  untruthfully,  every  answer  is 
warranted;  and  if  any  one  is  false,  even  by  honest  mistake, 
it  will  avoid  the  policy  regardless  of  its  materiality.®  The 
questions  whether  a  false  statement  in  an  application  for 
insurance  was  material  to  the  risk,  or  intentionally  made, 
are  of  no  importance  when  the  truth  of  every  statement  is 
warranted  and  made  the  basis  of  the  contract.^  A  war- 
ranty in  the  law  of  insurance  is  not  merely  collateral  to 
the  contract  but  an  integral  part  of  it  and,  unless  there  is 

1  Bader  v.  New  Amsterdam  Co.,  supra. 
«  Preston  v.  JEtna  Ins.  Co.,  85  N.  E.  1006. 
'  Jacobson  v.  Liverpool,  L.  &  G.  Ins.  Co.,  231  111.  61. 
*  Hamann  v.  Neb.  Underwriters  Ins.  Co.,  118  N.  W.  65. 
'  Deraing  Invest.  Co.  v.  Shawnee  F.  Ins.  Co.,  16  Okla.  1. 
«  Stensgaard  v.  St.  Paul  R.  E.  Title  Ins.  Co.,  50  Minn.  429. 
^  Cobb  V.  Covenant  Mut.  B.  Asso.,  153  Mass.  176;    Roberts  v.  State 
Ids.  Co.,  26  Mo.  App.  92. 


342  Law  for  the  American  Farmer 

a  statute  to  prevent,  invalidates  the  obligation  if  not 
strictly  true,  even  if  what  is  warranted  does  not  affect  the 
risk.^  A  misrepresentation  by  one  who  applies  for  insur- 
ance is  either  stating  something  as  a  fact  which  is  not  and 
which  he  knows  is  not  so  of  purpose  to  deceive  the  insurer, 
or  else,  stating  positively  as  true  without  knowing  whether 
it  is  or  not  that  which  is  really  false  and  which  tends  to 
mislead  the  insurer  to  his  prejudice  concerning  a  fact 
material  to  the  risk.^  A  misrepresentation,  even  if  made 
in  good  faith  by  mistake,  concerning  something  material 
to  the  risk  avoids  the  policy.^  If  there  has  been  a  mis- 
representation such  as  nullifies  the  policy,  it  makes  no 
difference  in  what  way  a  loss  may  have  occurred.^  The 
words  "representations"  and  "warranties,"  in  relation  to 
insurance,  are  not,  however,  equivalents.^  There  is  a 
difference  in  the  legal  effect  of  warranties  and  representa- 
tions in  applications  for  insurance.  If  a  warranty  is  false 
in  any  particular,  important  or  unimportant,  the  insured 
cannot  recover  on  the  policy,  but  for  an  untrue  representa- 
tion to  defeat  him  it  must  relate  to  some  matter  material 
to  the  risk.''  The  courts  do  not  favor  warranties  in  in- 
surance contracts  because  they  must  be  strictly  and  liter- 
ally made  good,  and  if  in  any  case  it  is  doul^tful  whether 
a  statement  in  an  application  is  a  warranty  or  a  represen- 
tation, the  courts  will  hold  it  to  be  the  latter.^  An  appli- 
cant for  insurance  who  answers  correctly  and  truthfully 

»  Salts  V.  Prudential  Ins.  Co.,  120  S.  W.  714. 

«  U.  S.  Fidelity  Co.  v.  First  Nat.  Bank,  233  III.  475. 

» Ibid.  "  Hazard  v.  New  Eng.  Ins.  Co.,  8  Pet.  557. 

»  Minn.  Mut.  L.  Ins.  Co.  v.  Link,  230  111.  273. 

«  Hocland  v.  West.  U.  L.  Ins.  Co.,  107  Pac.  866. 

T  Court  of  Honor  v.  Clark,  125  111.  App.  490. 


Insurance  against  Fire  and  Other  Losses    343 

all  the  questions  in  the  application  or  put  to  him  by  the 
underwriter's  agent  is  not  chargeable  with  misrepresenta- 
tion such  as  will  annul  the  pohcy  if  the  agent  without 
his  knowledge  writes  the  apphcation  wrong.^  And  if  when 
a  policy  of  fire  insurance  is  issued  the  underwriter  or  its 
authorized  agent  is  notified  or  is  fully  aware  of  facts  and 
conditions  the  existence  of  which  would  if  unknown  and 
unassented  to  by  the  terms  of  the  pohcy  render  it  void, 
the  policy  will  nevertheless  bind  the  insurer.^ 

§  223.     The  renewal  of  a  fire  insurance. 

Fire  insurance  contracts  are  always  term  contracts  which 
expire  after  a  certain  lapse  of  time  and  require  renewal  if 
the  insurance  is  longer  desired.  The  renewal  of  a  policy 
of  fire  insurance  amounts  simply  to  a  postponement  of 
the  date  of  its  termination  —  it  is  a  mere  continuance  for 
an  extended  term  of  the  insurance  upon  the  identical  terms 
and  conditions  of  the  original  policy  except  as  to  time. 
All  the  incidents  of  the  original  contract  attach  to  the 
renewed  contract.'^  A  renewal,  however,  is  so  far  a  new 
contract  that  a  change  in  the  law  made  between  the  time 
when  the  original  policy  issued  and  the  renewal  affecting 
the  risk  or  obligations  of  the  parties,  becomes  a  part  of 
the  renewed  contract.'*  Although  the  mere  renewal  of  an 
insurance  policy  for  an  additional  term  works  no  change 
in  the  terms  of  it  or  in  the  rights  and  obligations  of  the 

1  Continental  F.  Ins.  Co.  v.  Whitaker,  112  Tenn.  151. 

2  Hartley  v.  Penn'a  F.  Ins.  Co.,  91  Minn.  382  ;  Le\vis  v.  Guard.  F.  Ins. 
Co.,  181  N.  Y.  392;  Johnson  r.  iEtna  Ins.  Co.,  123  Ga.  404 ;  Queen  Ins. 
Co.  V.  Straughan,  70  Kan.  186. 

3  State  F.  &  M.  Ins.  Co.  v.  Porter,  3  Grant's  Cas.  123 ;  Lancey  v. 
Phcenis  Ins.  Co.,  56  Me.  562.        ^  Brady  v.  N.  W.  Ins.  Co.,  11  Mich.  425. 


344  Law  for  the  American  Farmer 

parties  to  it,  there  is  nothing  to  prevent  the  parties  if  they 
wish  to  do  so  from  changing  the  contract  in  any  desired 
particular  when  they  renew  it.^  If  in  renewing  the  poUcy 
the  parties  wish  to  make  a  change,  they  should  express  it 
in  the  renewal  receipt.^  Unless  otherwise  expressly  agreed, 
the  renewal  of  a  policy  takes  effect  at  the  expiration  of 
the  original  term  and  runs  for  the  same  period  again.^ 
A  promise  by  an  agent  of  the  company  to  renew  a  policy  of 
insurance  about  to  expire  which  he  wholly  forgets  to  keep 
does  not  make  the  company  liable  for  a  subsequent  loss."* 
The  promise  of  an  agent  to  attend  to  the  renewal  of  a  fire 
insurance  policy  in  response  to  a  statement  by  the  policy- 
holder that  he  wished  it  renewed  in  the  same  company  for 
the  same  sum  and  upon  the  same  terms,  as  he  was  going 
away  for  a  time  and  wanted  it  attended  to  before  he  left, 
does  not  go  quite  far  enough  to  renew  the  insurance.^  A 
fire  insurance  pohcy  which  has  lapsed  for  non-payment  of 
premium  cannot  be  revived  and  re-instated  in  force  after 
a  loss  occurs  by  payment  of  the  overdue  premium,  when 
payment  is  accepted  by  the  agents  of  the  company  in 
ignorance  that  the  loss  has  occurred.^ 

§  224.     Canceling  the  'policy. 

The  method  prescribed  in  an  insurance  policy  for  cancel- 
ing it  at  the  instance  of  the  underwriter  must,  to  be  effec- 
tual, be  closely  follov/ed/     An  insurance  policy  upon  which 

1  Nat.  L.  &  Acei.  Ins.  Co.  v.  Lokey,  52  So.  45. 

2  Driggs  V.  Albany  Ins.  Co.,  10  Barb.  440. 

3  Redmon  v.  Phcenix  Ins.  Co.,  51  Wis.  302. 

••  Idaho  Forward'g  Co.  v.  Fireman's  Fund  Ins.  Co.,  8  Utah,  41. 

6  Taylor  v.  Phcenix  Ins.  Co.,  47  Wis.  365. 

6  Johnson  v.  Cont'l  Ins.  Co.,  107  S.  W.  688. 

^  Davis  Lum.  Co.  v.  Hartford  F.  Ins.  Co.,  95  Wis.  226. 


Insurance  against  Fire  and  Other  Losses    345 

no  premium  has  been  paid,  and  which  provides  that  the 
insurer  may  terminate  it  at  once  by  giving  notice  to  the  in- 
sured, is  canceled  instantly  as  soon  as  notice  is  given  uncon- 
ditionally and  in  good  faith.^  To  be  good  a  notice  cancel- 
ing a  policy  must  be  unequivocal.^  If  the  premium  has 
been  paid,  the  liability  of  the  insurance  company  for  a  loss 
covered  by  the  policy  continues  after  notice  of  cancellation 
has  been  given  until  the  unearned  premium  has  been  paid 
or  tendered  back  to  the  insured.^  To  complete  the  cancel- 
lation the  unearned  premium  must  be  returned  or  tendered 
to  the  insured.*  A  telegram  from  the  underwriter  to  the 
local  agent  to  cancel  a  fire  insurance  poHcy  does  not  cancel 
it  until  the  agent  does  as  he  is  told.^  Except  in  case  of  fraud 
or  conduct  which  amounts  to  fraud  on  the  part  of  a  pohcy- 
holder,  a  company  when  the  premium  has  been  paid  cannot 
effectively  cancel  instantly  a  fire  insurance  policy  without 
affording  the  insured  a  fair  chance  to  get  other  insurance.^ 

§  225.     The  risks. 

A  policy  of  fire  insurance  covers  a  loss  caused  by  the 
negligence  of  the  insured,  provided  that  negligence  is  not 
so  gross  as  to  show  an  evil  intent.^  A  policy  insuring  live- 
stock against  death  by  lightning  covers  the  loss  of  animals 
by  fire  started  by  lightning  in  a  barn  in  which  the  brutes 
were  stabled.^    If  a  pohcy  insures  grain  in  general,  without 

1  Lipman  v.  Niagara  Ins.  Co.,  supra. 

2  Clark  V.  Ins.  Co.  of  No.  Amer.,  89  Me.  26. 

3  Hollingsworth  v.  Germania  Ins.  Co.,  45  Ga.  294. 

4  Tisdell  V.  N.  Hamp.  F.  Ins.  Co.,  155  N.  Y.  163. 
6  Fireman's  Fund  Ins.  Co.  v.  Hellner,  49  So.  297. 
«  Home  Ins.  Co.  v.  Heck,  65  111.  111. 

'  Pool  V.  Milwaukee  Mech.  Ins.  Co.,  91  Wis.  630. 
*  Hapeman  v.  Citizens'  F.  Ins.  Co.,  126  Mich.  191. 


346  Law  J  or  the  American  Farmer 

specifically  naming  the  kind  of  grain  covered,  it  is  the 
opinion  of  an  excellent  authority,  matured  after  a  careful 
consideration  of  the  decisions,  that  it  covers  all  seeds  of 
plants  which  form  a  part  of  the  food  of  either  man  or 
beast  and  such  others  as  enter  into  and  are  known  to 
commerce  or  which  were  intended  by  the  parties  to  be 
considered  as  grain.^  This  wdll  embrace,  not  only  wheat, 
maize,  rye  and  oats,  barley  and  buckwheat,  but  also  rice, 
pease,  beans,  millet,  and  flax-seed.  A  policy  insuring 
a  threshing  machine  while  not  in  use  against  loss  or  dam- 
age by  fire  not  an  incident  to  its  actual  operation  covers 
a  threshing  machine  which  after  resting  idle  for  a  fortnight 
is  hauled  to  a  farm-house  and  left  standing  preparatory  to 
using  it  a  few  days  later.^  A  policy  against  loss  or  damage 
by  wind-storms,  cj^clones,  or  tornadoes,  which  exempts  the 
company  from  liability  for  losses  direct  and  indirect  from 
lightning  and  hail,  does  not  insure  against  damage  done 
by  hail  accompanied  by  high  winds.^  And  a  policy  in- 
suring against  losses  by  fires  or  storms  does  not  render  the 
insurer  liable  for  a  loss  by  a  freshet  due  to  melting  snow.'* 
If  a  policy  of  fire  insurance  provides  that  the  underwriter 
shall  not  be  liable  for  property  destroyed  by  order  of  the 
civil  authorities,  no  recovery  can  be  had  upon  it  for  a  loss 
by  fire  which  spread  from  pasture  lands  where  it  was 
kindled  by  order  of  the  county  supervisors  to  burn  grass 
and  destroy  grasshoppers  which  threatened  to  devastate 
local  orchards  and  vineyards.^ 

»  Wood,  Fire  Ins.,  Chap.  II.,  §  56. 

2  Minneapolis  Thresh.  Mach.  Co.  v.  Fireman's  Ins.  Co.,  57  Minn.  35. 

3  Holmes  v.  Phenix  Ins.  Co.,  98  Fed.  240. 

*  Stover  V.  The  Ins.  Co.,  3  Phila.  38. 

•  Conner  v.  Manchester  Assur.  Co.,  130  Fed.  743. 


Insurance  against  Fire  and  Other  Losses     347 

§  226.     Location  of  insured  property. 

As  a  general  rule  an  insurance  company  is  only  liable 
upon  its  policy  insuring  personal  property  in  case  it  is  de- 
stroyed or  damaged  while  in  the  place  where  it  is  described 
to  be.  If,  however,  an  insurance  agent  in  preparing 
a  policy  makes  an  error  and  misstates  the  location  of  the 
insured  property,  knowing  its  actual  location,  the  insured 
in  case  of  loss  may  have  the  policy  reformed  and  recover 
upon  it.^  It  is  not  always  easy  to  say  when  the  location 
of  the  insured  property  at  the  time  of  loss  varies  from  its 
location  as  described  in  the  policy.  Thus,  a  lightning 
insurance  policy  on  grain  in  "stacks"  on  a  farm  has  been 
held  to  cover  grain  stacked  under  a  shed  ^  and  not  to  cover 
unthreshed  grain  in  a  mow  in  a  bam.^  Fire  insurance 
policies  upon  horses  and  mules  "all  contained  in"  a  desig- 
nated barn  have  been  held  to  cover  the  animals  both  in- 
side and  outside  of  such  barn  while  on  the  same  farm.  * 
And  pohcies  insuring  carriages  "  contained  in  "  a 
designated  barn  are  said  to  cover  the  vehicles  usually 
kept  in  such  barn  when  not  in  use.^  In  one  case, 
a  policy  insuring  a  barn  on  a  farm  and  the  live-stock 
in  it  from  loss  or  damage  from  fire  or  lightning  has  been 
held  to  cover,  when  it  did  not  expressly  except  such  a 
risk,  a  young  horse  temporarily  at  another  farm  for  the 
purpose  of  being  broken  to  harness ;  ^  while  in  two  other 

■  ^tna  Ins.  Co.  v.  Brannon,  99  Tex.  391. 

2  Farmers'  Mut.  Ins.  Co.  v.  Reser,  88  N.  E.  349. 

3  Benton  v.  Farmers'  Mut.  Fire  Ins.  Co.,  102  Mich.  281. 

*  Haws  V.  Phila.  Fire  Asso.,  114  Pa.  St.  431 ;  Amer.  Cent.  Ins.  Co.  v. 
Haws,  11  Atl.  107;   Holbrook  v.  St.  Paul  Fr.  Ins.  Co.,  25  Minn.  229. 

6  McCluer  v.  Girard  F.  Ins.  Co.,  43  Iowa  349 ;  Niagara  Ins.  Co.  r. 
Elliott,  85  Va.  962.  «  Lathers  v.  Mut.  F.  Ins.  Co.,  135  Wis.  431. 


348  Law  for  the  Americari  Farmer 

cases  such  a  policy  has  been  held  not  to  cover  horses 
usually  housed  in  the  insured  barn  and  killed  by  lightning 
outside  ^  nor  a  colt  so  killed  while  in  a  field  at  pasture.^ 
A  pohcy  of  fire  insurance  upon  farm  utensils  in  buildings 
on  the  farm  does  not  cover  a  hay  press  in  an  open  hay 
stack  yard  several  feet  distant  from  any  building.^  And 
a  policy  insuring  a  harvester  "operating  in  grain  fields  and 
in  transit  from  place  to  place  in  connection  with  harvest- 
ing" does  not  cover  the  machine  while  standing  near  a 
blacksmith's  shop  waiting  to  be  repaired  for  immediate 
use.^ 

§  227.     Restrictions  against  increase  of  hazard. 

It  is  only  right  and  proper  that,  after  property  in  a 
certain  situation  and  use  has  been  insured,  the  owner 
should  not  be  allowed  so  to  act  as  to  increase  the  insurer's 
risk  and  still  keep  his  insurance.  All  policies  of  insurance 
upon  property  are  therefore  conditioned  to  be  void  in  case 
the  insured  increases  the  danger  of  loss  either  by  neglecting 
to  watch  and  protect  the  subject  of  insurance  or  bringing 
near  to  it  dangerous  things,  or  using  it  in  a  hazardous  way ; 
and  all  such  conditions  are  held  reasonable  and  valid. 
The  courts  are  all  agreed  that,  when  a  loss  or  damage  is  a 
consequence  of  something  forbidden  in  the  policy,  the 
insurer  is  not  liable,  but  they  disagree  over  the  insurer's 
liability  when  the  forbidden  thing  has  been  done  but  has 
ceased  to  be  done  and  a  loss  afterwards  occurs  in  nowise 

'  Farmers'  Mut.  Fire  Asso.  v.  Kryder,  5  Ind.  App.  430. 

2  Haws  V.  St.  Paul  F.  Ins.  Co.,  130  Pa.  St.  113. 

3  Phcenix  Ins.  Co.  v.  Stewart,  53  111.  App.  273. 
*  Mawhinney  v.  So.  Ins.  Co.,  98  Cal.  184. 


Insurance  against  Fire  and  Other  Losses    349 

attributable  to  the  doing  of  such  thing.  A  reference  to  a 
few  cases  will  make  this  clear.  It  has  been  held  that  when 
a  policy  of  insurance  is  conditioned  to  be  void  if  dynamite 
is  kept,  used,  or  allowed  on  the  insured  premises,  and  such 
condition  is  broken,  the  policy  lapses  and  may  not  be  re- 
covered upon  although  the  breach  had  no  connection  with 
the  loss.^  A  fire  insurance  policy  conditioned  to  be  void 
if  seed-cotton  is  stored  upon  the  insured  premises  lapses 
when  the  condition  is  broken  by  a  tenant  of  the  insured 
without  his  knowledge.-  But  the  temporarj^  use  for  a  few 
hours  only  of  an  engine-driven  threshing  machine  upon  the 
insured  premises  will  not  work  a  forfeiture  of  insurance 
conditioned  to  end  in  case  of  any  change  in  the  use  or  status 
of  the  property  which  increases  the  risk  of  fire.^  And  yet 
an  insurance  policy  upon  corn-cribs  and  their  contents, 
conditioned  to  be  void  in  case  anj^  change  in  exposure 
to  the  hazard  of  fire  occurs  by  the  erection  or  occupancy 
of  adjacent  buildings  or  by  any  means  whatever  in  the 
control  or  knowledge  of  the  insured,  lapses  when  an  engine 
and  boiler  to  furnish  power  for  a  corn-sheller  are  brought 
near  and  operated  by  or  with  the  permission  of  the  in- 
sured.-' A  provision  in  an  insurance  policy  avoiding  it  in 
case  a  change  in  the  use  of  the  insured  property  increases 
the  risk  of  fire  has  been  held  to  operate  only  so  long  as  the 
extra  hazard  continues  and  to  suspend  rather  than  annul 
the  policy ;  ^  it  does  not,  it  is  said,  affect  the  insurer's 
liability  for  a  loss  sustained  after  the  extra  hazard  ceased 

'  Bastian  v.  British  Amer.  Assur.  Co.,  143  Cal.  287. 

2  Edwards  v.  Farmers'  Mut.  Ins.  Asso.,  128  Ga.  353. 

3  Adair  v.  So.  Mut.  Ins.  Co.,  107  Ga.  297. 

*  Davis  V.  West.  Home  Ins.  Co.,  81  Iowa,  496. 
6  Trader's  Ins.  Co.  v.  Catlin,  163  111.  256. 


350  Law  for  the  American  Farmer 

and  which  in  nowise  was  attributable  to  it.^  If  a  fire 
insurance  policy  on  a  farm  barn  contains  no  limitation  on 
its  use,  the  underwriter  cannot  avoid  a  liability  for  its 
destruction  upon  the  plea  that  the  hazard  was  increased 
by  using  it  to  store  a  particular  kind  of  produce,  —  tobacco, 
for  example,  —  where  the  policy  provided  for  a  forfeiture 
in  case  the  risk  was  made  more  hazardous.^ 

§  228.     Vacant  and  unoccupied  property. 

A  common  clause  in  fire  insurance  policies  annuls  the 
insurance  in  case  the  insured  property  becomes  vacant  and 
unoccupied  during  the  term.  This  is  a  reasonable  pro- 
vision, since  obviously  the  hazard  of  fire  is  greater  for  an 
unoccupied  than  an  occupied  building.  Whether  or  not 
insured  property  becomes  vacant  and  unoccupied  within 
the  meaning  of  a  pohcy  of  insurance  conditioned  to  be 
void  in  case  it  does  is  sometimes  a  doubtful  question,  to 
be  determined  by  the  circumstances  of  the  particular  case.' 
Insured  property  to  be  occupied  must  be  substantially  and 
practically  used  for  the  purposes  for  which  it  is  designed, 
although  the  occupancy  of  a  dvv'elUng,  a  barn,  or  a  mill  is 
each  of  a  different  sort.'*  A  dwelling  house  and  barn  were 
held  to  be  vacant  and  unoccupied  when  the  house  was  only 
used  by  the  insured  and  his  servants  to  take  their  meals  in 
while  working  a  contiguous  farm  and  the  barn  was  only  used 
for  the  storage  of  hay  and  farming  tools.^  Again,  a  farm- 
house was  held  to  be  unoccupied  when  the  policy-holder 

1  Trader's  Ins.  Co.  v.  Catlin,  163  111.  256. 

«  Hartford  Fire  Ins.  Co.  v.  Chenault,  126  S.  W.  1098. 

3  Sonneborn  v.  M'f'rs  Ins.  Co.,  44  N.  J.  L.  220. 

*  Ibid.  '  Keith  v.  Quincy  Mut.  F.  Ins.  Co.,  10  Allen,  228. 


Insurance  against  Fire  and  Other  Losses     351 

lived  two  miles  away,  although  the  hired  men  when  working 
the  farm  cooked,  ate,  and  slept  in  it,  when  at  other  times  it 
was  empty  except  of  furniture  and  was  only  occasionally 
visited  for  inspection. ^  Farm  buildings  were  held  to  be 
vacant  and  personally  unoccupied  within  the  terms  of  a 
fire  insurance  policy  conditioned  to  be  void  if  they  became 
so  when  the  occupant  removed  his  family  to  a  neighboring 
village  to  obtain  medical  attendance  for  his  wife  about  to 
be  confined,  although  he  purposed  to  return  immediately 
after  the  child  was  born  and  in  the  meantime  visited  the 
farm-house  almost  daily  in  carrying  onthe  workof  thefarm.^ 
It  is  held  that  a  fire  insurance  policy  is  suspended  rather 
than  annulled  when  the  insured  property  becomes  va- 
cant and  unoccupied,  to  be  revived  again  and  be  in  force 
when  the  vacancy  ceases  and  the  premises  are  re-occupied.^ 
A  local  insurance  agent  has  no  power  orally  to  change  a 
clause  in  an  insurance  policy  relating  to  vacant  and  un- 
occupied premises.* 

§  229.     Insurable  interest  in  insured  property. 

Every  policy  of  fire  insurance  to  be  valid  must  be  predi- 
cated upon  an  interest  of  the  insured  in  the  property 
covered.^  A  policy  of  insurance  upon  property  in  which 
the  insured  has  no  insurable  interest  is  void.^  Every 
person  who  may  suffer  pecuniary  loss  by  its  destruction 
has  an  insurable  interest  in  property.^     Thus,  every  mort- 

1  Fitzgerald  v.  Conn.  F.  Ins.  Co.,  64  Wis.  463. 

2  Knowlton  v.  Patrons'  Androscoggin  Ins.  Co.,  100  Me.  481. 

3  Ins.  Co.  of  No.  Amer.  v.  Pitts,  88  Miss.  587. 
*  Harris  v.  No.  Am.  Ins.  Co.,  190  Mass.  361. 
»  Wood,  Fire  Ins.,  Chap.  II.,  §  39. 

«  Smith  V.  Union  Ins.  Co.,  25  R.  I.  260. 
^  Waiuer  v.  Milford  Mut.  F.  Ins.  Co.,  supra. 


352  Law  for  the  American  Farmer 

gagee  has  an  insurable  interest  in  the  mortgaged  property,^ 
and  a  purchaser  who  has  paid  a  part  of  the  purchase  price 
and  been  let  into  possession  of  the  premises  under  a  con- 
tract for  a  future  conveyance  has  an  insurable  interest 
in  the  property .^  A  misrepresentation  of  the  interest 
of  the  insured  avoids  the  policy.^  And  when  the  in- 
sured's interest  in  the  insured  property  ceases,  the  insur- 
ance ceases.  Insurance  is  a  personal  contract  and  does 
not  follow  the  insured  property  when  it  is  transferred  to 
a  new  owner.*  A  policy  of  fire  insurance  conditioned  to 
end  if  the  insured  property  is  conveyed  ceases  upon  the 
sale  of  the  property  unless  the  insurer  chooses  to  continue 
it  for  the  purchaser's  benefit.'^  But  a  mere  executory 
contract  to  sell  the  insured  property  is  not  such  a  change 
of  title  or  interest  as  will  terminate  the  insurance.®  If, 
however,  an  owner  of  a  farm  contracts  to  sell  and  convey 
it  in  fee  and  lets  the  purchaser  have  possession,  although 
he  retains  the  title  until  the  purchase  money  is  paid, 
there  is  such  a  change  of  ownerships  as  will  end  the 
insurance.^  The  levy  of  legal  process  upon  insured  prop- 
erty without  any  change  of  possession  or  location  is  not 
such  a  change  of  title  or  interest  as  to  avoid  a  policy 
of  fire  insurance,^ 

1  Loewenstein  v.  Queen  Ins.  Co.,  127  S.  W.  72. 

2  Zenor  v.  Hayes,  228  111.  626. 

'  Columbia  Ins.  Co.  v.  Lawrence,  10  Pet.  507. 

■*  Shadgatt  v.  Phillips  &  Crew  Co.,  supra. 

6  Bates  V.  Equitable  F.  &  M.  Ins.  Co.,  10  Wall.  33. 

'  Evans  v.  Crawford  Co.  Farmers'  Ins.  Co.,  130  Wis.  189;  Garner  v. 
Milwaukee  Mech.  Ins.  Co.,  73  Kan.  127. 

'  Grunauer  v.  Westchester  F.  Ins.  Co.,  72  N.  J.  L.  289 ;  Baker  v. 
Monumental  Sav.  &  Loan  Asso.,  58  W.  Va.  408. 

8  O'Toole  V.  Ohio  Ger.  F.  Ins.  Co.,  123  N.  W.  795. 


Insurance  against  Fire  arid  Other  Losses    353 

§  230.     Conditions  respecting  ownership,  encumbrances,  arid 
other  insurance. 

A  policy  of  fire  insurance  is  often,  perhaps  commonly, 
conditioned  to  be  void  if  the  interest  of  the  insured  is  less 
than  the  sole  and  unconditional  ownership  of  the  insured 
property ;  or  if  the  property  is  suffered  to  become  encum- 
bered ;  or  if  additional  insurance  upon  it  is  procured 
without  the  insurer's  consent.  A  provision  in  a  fire  in- 
surance policy  making  its  validity  depend  upon  the  sole 
and  unconditioned  ownership  of  the  insured  policy  by  the 
policy-holder  is  reasonable  and  vahd,i  and  binding  on  the 
pohcy-holder.2  If  the  policy  contains  such  a  provision,  the 
company  is  not  liable  upon  it  for  a  loss  unless  the  insured 
has  a  title  of  that  kind  to  the  insured  property.^  One  is 
the  sole  owner  of  property  when  no  one  else  has  any  interest 
in  it,  and  he  is  the  unconditional  owner  of  it  when  the 
quality  of  his  estate  in  it  is  not  limited  or  affected  by  any 
condition.^  The  o\Mier  of  real  estate  under  a  conveyance 
in  fee  is  the  sole  and  unconditional  owner  of  insured  prop- 
erty within  the  meaning  of  a  fire  insurance  policy,  not- 
withstanding he  still  owes  a  part  of  the  price  and  his  grantor 
has  by  law  a  lien  upon  the  land  for  the  unpaid  balance.^ 
Unless  a  fire  insurance  policy  stipulates  against  encum- 
brances, the  underwriter  is  not  released  from  his  obligations 
if  the  insured  encumbers  the  property,  *•  but  if  the  policy 
provides  that  it  shall  be  void  if  the  insured  property  is  or 

1  Bacot  V.  Phenix  Ins.  Co.,  50  So.  729. 
*  Ins.  Co.  of  No.  Amer.  v.  Erickson,  50  Fla.  419. 
'  Tyree  v.  Va.  Ins.  Co.,  55  W.  Va.  63. 
^  Bacot  V.  Phenix  Ins.  Co.,  supra. 
'  Ins.  Co.  of  No.  Amer.  v.  Pitts,  supra. 
«  Cooper  V.  Amer.  Cent.  Ins.  Co.,  123  S.  W.  497. 
2a 


354  Law  for  the  American  Farmer 

becomes  encumbered,  unless  otherwise  agreed,  the  putting 
of  a  mortgage  upon  it  without  the  consent  of  the  under- 
writer destroys  the  insurance.^  If  an  applicant  for  in- 
surance is  asked  if  there  is  not  an  encumbrance  on  the 
property  of  one  thousand  dollars,  his  simple  answer, 
''over  two  thousand  dollars,"  when  the  encumbrance  is 
really  five  thousand  dollars,  is  a  misrepresentation  and 
fraudulent  concealment  that  will  avoid  the  policy.^  A 
condition  in  a  fire  insurance  policy  prohibiting  other  in- 
surance without  the  insurer's  consent  is  reasonable.^  If 
such  a  condition  is  violated,  the  policy  is  forfeited.* 

§  231.     Notice  and  proof  of  loss. 

If  an  insurance  policy  requires  proofs  of  loss  to  be  made 
and  submitted  to  the  insurer  within  a  stated  time  after 
the  loss  —  three  months,^  sixty  days,^  thirty  days  ^  — 
in  order  to  make  the  underwriter  liable,  such  proofs  must 
be  furnished  within  the  limited  time,  unless  that  is  ex- 
tended definitely  or  indefinitely,  either  expressly  or  by 
implication,  failing  which,  the  insured  cannot  recover. 
It  is,  however,  a  general  rule  of  law,  probably  applicable  in 
such  cases,  that  when  the  last  day  to  do  an  act  falls  on 
Sunday,  he  who  is  to  do  it  has  the  whole  of  the  next  day 
in  which  to  do  it.^     If  the  policy  simply  requires  proofs  of 

•  Moore  v.  Crandall,  124  N.  W.  812. 

2  Smith  V.  Agric.  Ins.  Co.,  118  N.  Y.  518. 

'  Bakhaus  v.  Germania  Ins.  Co.,   176  Fed.  879. 

*  Carpenter  v.  Providence  Wash.  Ins.  Co.,  16  Pet.  495. 
«  Cumberland  Val.  Co.  v.  Schell,  29  Pa.  St.  31. 

«  East.  R.  R.  V.  Relief  F.  Ins.  Co.,  105  Mass.  570. 
'  Planters'  Ins.  Co.  v.  Deford,  38  Md.  382 ;  Troy  F.  Ins.  Co.  v.  Carpen- 
ter, 4  Wis.  20. 

»  Street  v.  U.  S.,  133  U.  S.  299  ;  Monroe  Cattle  Co.  v.  Becker,  147  id.  47. 


Insurance  against  Fire  and  Other  Losses    355 

loss  to  be  furnished  immediately,  or  as  soon  as  possible, 
without  prescribing  a  definite  time  limit,  the  proofs  must 
be  furnished  promptly,  that  is,  within  a  reasonable  timc.^ 
The  requirement  of  immediate  notice  does  not  necessarily 
•mean  that  it  must  be  given  at  the  earliest  time  possible, 
but  that  it  must  be  given  within  a  reasonable  time  in  view 
of  all  the  circumstances.^  As  in  all  other  matters,  what  is 
a  reasonable  time  depends  upon  the  circumstances  of  the 
particular  case.^  The  mere  lapse  of  time  before  notice  is 
given,  unless  fixed  by  the  policy,  is  not  conclusive  as  to  an 
unreasonable  delay.  In  one  case  a  delay  of  fifty  days  in 
giving  notice  of  a  fire  loss  was  held  to  be  open  to  proper 
explanation  and  excuse,^  although  in  another  case  a  failure 
to  give  notice  of  a  fire  loss  for  sixty  days  was  held  unreason- 
able and  sufficient  of  itself  to  defeat  the  insured.^  The 
neglect  of  the  insured  to  furnish  proofs  of  loss,  when  the 
policy  requires  them  to  be  furnished  as  a  condition  of 
the  insurer's  liability,  prevents  a  recovery  upon  the  policy 
unless  the  underwriter  waives  the  requirement.^  Proofs 
of  loss  must  comply  strictly  with  the  requirements  of  the 
policy  in  every  material  respect  in  order  to  fasten  a  lia- 
bility upon  the  insurer.^  After  a  loss  of  the  insured 
property  by  fire  and  notice  of  it  to  the  insurer  and  a  view- 

>  Knick.  Ins.  Co.  v.  McGinnis,  87  111.  70 ;  Palmer  v.  St.  Paul  F.  &  M. 
Ins.    Co.,   44   Wis.    201. 

2  Solomon  v.  Continental  F.  Ins.  Co.,  160  N.  Y.  595;  Travelers'  Ins. 
Co.  V.  Myers,  62  Ohio  St.  529. 

s  Paine  v.  Cent.  Vt.  R.  R.,  118  U.  S.  152. 

*  Solomon  v.  Continental  F.  Ins.  Co.,  supra. 

»  Ermentrout  v.  Girard  F.  Ins.  Co.,  63  Minn.  305. 

«  Stoebe  v.  Hanover  F.  Ins.  Co.,  112  N.  Y.  Supp.  553 ;  Home  F.  Ins. 
Co.  V.  Driver,  112  S.  W.  200 ;  Amer.  F.  Ins.  Co.  v.  Haynie,  120  S.  W.  823. 

'  Wood,  Fire  Ins.,  Chap.  XIII.,  §  43G. 


356  Law  for  the  American  Farmer 

ing  once  or  twice  by  the  underwriter's  inspectors  of  the 
charred  remains,  the  insured  is  not  bound  to  permit  tiie 
htter  and  debris  to  he  about  indefinitely  awaiting  the 
pleasure  of  the  company  in  appraising  the  loss.^  A  clause 
in  a  policy  insuring  live-stock,  which  requires  the  policy- 
holder in  case  of  the  sickness  of  an  insured  animal  to  notify 
the  insurer  by  telegraph,  does  not  apply  to  a  temporary 
illness  of  a  beast  lasting  only  a  few  minutes.^ 

§  232.     Waivers  by  underwriters. 

An  insurance  company  may  always  waive  a  stipulation 
or  condition  inserted  in  a  policy  for  its  benefit.'  An  under- 
writer may  waive,  either  expressly  or  impliedly,  the  com- 
pliance by  the  insured  with  any  condition  in  the  policy 
short  of  one  essential  to  the  maintenance  of  an  insurable 
interest.*  The  power  of  a  stock  insurance  company  to 
waive  a  condition  in  its  policy  requiring  pre-payment  of 
the  premium  is  nowhere  now  questioned ;  and  it  has  been 
said  ^  that  there  is  no  conflict  of  authority  (and  the  cases 
upon  the  point  are  numerous)  as  to  the  power  of  an 
agent,  having  actual  or  apparent  authority  to  do  so,  to 
waive  pre-payment  of  the  premium.  If  an  insurance 
company  accepts  payment  of  an  overdue  premium,  it 
may  not  forfeit  the  policy  for  non-payment  on  the  day  it 
became  due.^    And  if  the  conduct  of  the  company  toward 

1  Flynn  v.  Hanover  F.  Ins.  Co.,  121  N.  Y.  Supp.  621. 

2  Kells  V.  No.  West.  Live-stock  Ins.  Co.,  64  Minn.  390. 

3  Knick.  L.  Ins.  Co.  v.  Norton,  96  U.  S.  234 ;  Va.  F.  &  M.  Ins.  Co.  v. 
Richmond  Mica  Co.,  102  Va.  429;  Prov.-Wash.  Ins.  Co.  v.  Wolf,  168 
Ind.  690.  *  Bush  v.  Hartford  F.  Ins.  Co.,  222  Pa.  St.  419. 

«  Wood,  Fire  Ins.,  Chap.  I.,  §  28. 

«  Globe  Mut.  L.  Ins.  Co.  v.  Wolff,  95  U.  S.  326. 


Insurance  against  Fire  and  Other  Losses    357 

the  policy-holder  has  been  such  as  to  induce  him  to  believe 
that  payment  of  the  premium  within  a  reasonable  time 
after  it  fell  due  would  be  accepted,  a  tender  of  the  premium 
within  a  reasonable  time  after  it  becomes  due  wdll  prevent  a 
forfeiture.^  An  underwTiter  may  waive  a  provision  in  a 
fire  insurance  policy  forfeiting  it  in  case  additional  insur- 
ance is  procured  without  its  consent,^  and  it  may  waive 
notice  and  proof  of  loss.^  An  insurance  company  does  not 
waive  its  right  to  be  furnished  with  proof  of  loss  merely 
because  it  receives  and  rejects  an  offer  to  compromise ;  * 
but  by  denying  altogether  any  liability  upon  the  policy 
it  waives  the  requirement  of  proof  of  loss.^  If  an  insurance 
company  wittingly  induces  a  policy-holder  to  think  it 
means  to  waive  formal  proofs  of  loss,  it  will  be  liable  on 
the  policy  if  the  insured,  resting  upon  such  behef ,  omits  to 
furnish  the  proofs.^  There  is  nothing  to  arbitrate  if  an 
insurer  denies  in  toto  all  liabihty  on  the  policy,  so  a  pro- 
vision in  it  for  arbitration  of  loss  is  thereby  waived.' 
Forfeitures  are  not  favored  in  law  and  courts  promptly 
seize  upon  any  circumstance  that  indicates  a  waiver  of  the 
right  to  forfeit  or  an  agreement  not  to  forfeit  upon  which 
the  insured  has  rehed.^  A  forfeiture  once  waived  is  waived 
for  all  time  and  may  not  afterwards  be  enforced.^ 

1  PhcEnix  Mut.  L..  Ins.  Co.  v.  Doster,  106  U.  S.  30. 

2  Henderson  v.  Standard  F.  Ins.  Co.,  121  N.  W.  714. 
'  Loewenstein  v.  Queen  Ins.  Co.,  supra. 

*  Lapcevic  v.  Lebanon  Mut.  Ins.  Co.,  40  Pa.  Super.  Ct.  294. 

5  Higson  V.  No.  River  Ins.  Co.,  67  8.  E.  509 ;  Hilburn  v.  Phoenix  Ina. 
Co.,  124  N.  W.  63 ;    MHles  v.  Casualty  Co.,  120  N.  Y.  Supp.  1135. 

'  Loewenstein  v.  Queen  Ins.  Co.,  supra. 

'  Higson  V.  No.  Riv.  Ins.  Co.,  supra. 

«  N.  Y.  Life  Ins.  Co.  v.  Eggleston,  96  U.  S.  572. 

»  N.  Eng.  Mut.  L.  Ins.  Co.  v.  Springgate,  112  S.  W.  681 ;  Union  Cent. 
L.  Ina.  Co.  v.  Washburn,  48  So.  475. 


358  Law  for  the  American  Farmer 

§  233.     Time  limitations  on  the  bringing  of  suit. 

The  parties  to  a  contract  of  insurance  may  lawfully  con- 
tract that  no  action  shall  be  brought  upon  the  policy 
after  the  lapse  of  a  certain  limited  period  of  time  of  reason- 
able duration  from  the  occurrence  of  a  loss,  and  such  a 
provision  in  the  policy  is  valid  and  binding. ^  This  provi- 
sion is  one  which  a  company  may  expressly  waive,  and 
which  impliedly  it  does  waive  by  conduct  which  causes 
the  insured  to  delay  or  prevents  him  from  bringing  his 
action  within  the  time  limit.^  The  return  by  a  company  to 
the  insured  for  correction  of  defective  proofs  of  loss  and 
its  acceptance  of  amended  proofs  later,  followed  by  a 
letter  from  its  secretary  naming  a  day  of  payment  beyond 
the  stipulated  limitation  period,  waives  the  limitation.' 
The  limitation  period,  however,  runs  notwithstanding  the 
pendency  of  ordinary  negotiations  to  adjust  the  loss  and 
interviews  upon  the  subject  from  time  to  time  between  the 
insurer  and  insured,^  provided,  always,  that  the  insurer 
throughout  does  nothing  to  prevent  the  insured  or  to 
induce  him  to  refrain  from  beginning  suit  in  season.  Thus 
the  company  may  not  set  up  the  delay  which  it  has  caused 
by  insisting  upon  an  arbitration  as  a  bar  to  the  policy- 
holder's action.^  Nor  may  an  insurance  company  hold 
out  the  hope  of  an  amicable  settlement  of  the  loss  and  thus 
lead  him  to  delay  bringing  suit  and  then  set  up  the  special 
limitation  of  time  stipulated  for  in  the  policy.^ 

1  Wood,  Fire  Ins.,  Chap.  XIV.,  §  460,  and  casea  cited. 

«  Peoria  Ins.  Co.  v.  Hall,  12  Mich.  202. 

'  Ames  V.  N.  Y.  Union  Ins.  Co.,  14  N.  Y.  253. 

*  McFailand  v.  Peabody  Ins.  Co.,  6  W.  Va.  425  ;   Gooden  v.  Amoskeag 
Ina.  Co.,  20  N.  H.  73.  '  Barber  v.  F.  &  M.  Ins.  Co.,  16  W.  Va.  658. 

•  Thompson  v.  Phenix  Ina.  Co.,  136  U.  S.  287. 


CHAPTER  XXX 

CO-OPERATIVE    FIRE   INSURANCE 

§§  234-239 

§  234.     Features  in  common  with  other  insurance. 

Every  policy-holder  in  every  insurance  company,  whether 
it  is  a  mutual  company  or  not,  has  a  relation  to  others 
associated  in  such  company  by  which  he  is  interested  in 
the  engagements  of  all,  as  out  of  the  co-existence  of  many 
risks  arises  the  principle  of  average  which  underUes  all 
insurance.^  The  principles  and  their  applications  respect- 
ing fire  insurance  in  general  which  have  been  set  forth 
in  the  preceding  chapter  also  govern  co-operative  insar- 
ance,  especially  in  those  cases  where  the  forms  of  policies 
used  are  the  same,  A  co-operative,  like  any  other  fire 
insurance  company,  may  make,  if  not  forbidden  by  law  to 
do  so,  a  valid  oral  contract  insuring  property,^  and  the 
doctrines  of  waiver  and  estoppel  arising  out  of  the  knowl- 
edge and  conduct  of  an  underwriter's  agents  apply  as  well 
to  mutual  assessment  insurance  companies  as  to  stock 
insurance  companies  both  as  respects  the  form  and  the 
substance  of  their  policies.^  In  common  with  all  insur- 
ance companies,  co-operative  fire  insurance  associations, 

1  N.  Y.  Life  Ins.  Co.  v.  Statham,  93  U.  S.  24. 
»  Van  Loan  v.  Farmers'  Mut.  Ins.  Co.,  90  N.  Y.  280. 
»  McCarty  v.  Piedmont  Mut.  Ins.  Co.,  62  S.  E.  1. 

359 


360  Law  for  the  American  Farmer 

whether  voluntary  unincorporated  societies  or  chartered 
corporations,  are  subject  to  state  regulation  and  official 
supervision.  Every  state  has  power  to  regulate  the  busi- 
ness of  fire  insurance  within  its  borders.^  Those  who 
seek  to  carry  on  the  business  of  insurance  are  properly 
subject  to  reasonable  governmental  regulations.^  The 
business  of  fire  insurance  is  affected  by  a  public  interest 
and  a  corporation  transacting  it  may  be  restrained  in  an 
action  by  the  state  from  carrying  out  contracts  injurious 
to  public  interest  and  welfare.^  The  legislature  may  law- 
fully forbid  voluntary  associations  to  transact  insurance 
business  and  confine  it  entirely  to  corporations.'*  A 
state  may  regulate  insurance  companies  both  in  virtue 
of  its  police  powers  for  the  protection  and  welfare  of  the 
public  and  its  power  to  create  and  control  domestic  and 
foreign  corporations.^ 

§  235.    Distinction  between  co-operative  and  other  insurance 
companies. 

A  stock  insurance  company  is  one  in  which  the  stock- 
holders contribute  all  the  capital,  pay  the  losses,  and  take 
the  profits;  and  a  mutual  insurance  c  mpany  is  one  in 
which  the  members  are  both  insurers  and  insured,  all 
contributing  to  a  fund  to  pay  losses  and  expenses  and 
dividing  profits  in  proportion  to  their  respective  inter- 
ests.^   A  mutual  fire  insurance  company  is  an  association 

1  Hoadley  v.  Purifoy,  107  Ala.  276. 

2  State  V.  Stone,  118  Mo.  388. 

3  McCarter  v.  Firemen's  Ins.  Co.,  73  Atl.  80. 

*  Com.  V.  Vrooman,  164  Pa.  St.  306. 

6  N.  Y.  Life  Ins.  Co.  v.  Hardison,  85  N.  E.  410. 

•  State  V.  Willett,  86  N.  E.  68. 


Co-operative  Fire  Insurance  361 

to  provide  mutual  relief  to  its  members  for  fire  losses,  in 
which  all  the  policy-holders  are  members  and  each  policy- 
holder has  a  proportionate  interest  and  liability. ^  In  a 
mutual  insurance  company  the  members  make  contribu- 
tions either  in  money  or  assessable  premium  notes,  or  both, 
according  to  the  adopted  plan  of  transacting  business,  to 
make  up  a  common  fund  from  which  each  is  entitled  to 
indemnity  in  case  of  loss.-  Such  a  company  is  simply  one 
in  which  the  funds  to  pay  losses  are  provided,  not  by  capital 
subscribed  by  outsiders,  but  by  premiums  met  by  the  per- 
sons insured.^  A  co-operative  fire  insurance  society  aims 
to  indemnify  its  members  against  the  loss  or  damage  of 
their  property  by  fire  by  providing  compensation  upon  the 
principle  of  mutual  assessment.  The  members  are  mutu- 
ally bound  each  to  all  the  others  to  make  good  to  whosoever 
of  their  number  incurs  it  his  loss  or  damage  by  fire.  It  is 
not  a  charitable  or  benevolent  scheme  in  any  sense,  but  a 
selfish  one  in  the  sense  that  every  member  goes  into  it  for 
his  own  benefit  and  to  protect  his  private  interests.  It 
is  the  promise  to  him  that  if  his  property  is  burned  he  shall 
be  paid  for  it,  that  leads  him  to  agree  to  pay  annual  dues 
and  other  charges  and  to  contribute  when  a  fellow-mem- 
ber's property  is  consumed  or  injured  by  fire  a  sum  of 
money  towards  his  compensation.  The  membership  is 
composed  of  persons  who  think  this  plan  of  mutual  insur- 
ance cheaper  or  more  advantageous  in  some  way  than  other 
modes  of  insurance,  and  the  purpose  of  the  society  is  to 
furnish  insurance  and  not  to  dispense  charity  or  benevo- 

1  Lamb.  &  Co.,  v.  Merchants'  Nat.  Mut.  F.  Ins.  Co.,  119  N.  W.  1048. 

*  Union  Ins.  Co.  v.  Hoge,  62  U.  S.  35. 

»  Mygatt  V.  N.  Y.  Protection  Ins.  Co.,  21  N.  Y.  62. 


362  Law  Jor  the  American  Farmer 

lence.  The  benefits  it  offers  are  restricted  to  its  members 
who  agree  to  do  just  what  they  require  to  be  done  for 
themselves  upon  suffering  a  fire  loss.  All  the  members 
contract  for  a  benefit  to  themselves  in  certain  contingen- 
cies and  pay  their  money  for  it.  The  society  is,  therefore, 
a  mutual  insurance  company.^ 

§  236.     The  contract  between  a  co-operative  insurance  com- 
pany and  a  member. 

When  one  takes  out  a  policy  of  fire  insurance  in  a  stock 
company  his  whole  contract  is  contained  in  his  policy, 
but  if  he  insures  in  a  co-operative  company,  this  is  not  the 
case.  An  application  for  insurance  in  a  mutual  co-opera- 
tive insurance  company  is  in  legal  effect  an  application  to 
become  a  member  of  the  association  upon  the  terms  and 
conditions  stated  in  its  charter,  constitution,  and  by-laws.^ 
The  articles  of  agreement,  usually  termed  a  constitution 
and  by-laws,  of  such  an  organization  constitute  the  con- 
tract of  its  members  and  are  binding  upon  those  who  join 
unless  they  are  contrary  to  public  policy  or  the  law  of  the 
land.^  The  constitution  and  by-laws  of  mutual  co-opera- 
tive assessment  companies  are  binding  upon  policy-holders 
when  neither  contrary  to  statutes  nor  unreasonable. 
The  members  of  such  a  company  are  presumed  to  know  its 
articles  of  association  and  by-laws  ^  —  conclusively  so 
presumed.^  And  these  by-laws  are  a  part  of  every  insur- 
ance contract  between  the  association  and  its   members.® 

»  Co-op.  F.  Ins.  Order  v.  Lewis,  80  Tenn.  136. 
*  Van  Loan  v.  Farmers'  Mut.  Ins.  Co.,  supra. 

5  Brown  v.  Stoerkel,  74  Mich.  269 ;  Clark  v.  Mut.  Res.  L.  Asso.,  14 
Dist.  Col.  A  pp.  154.  ■•  Corey  v.  Sherman,  96  Iowa,   114. 

6  Benes  v.  Sup.  Lodge  K.  &  L.  H.,  231  111.  134.  « Ibid. 


Co-operative  Fire  Insurance  363 

§  237.     The  liability  of  policy-holders  to  assessment. 

A  policy-holder  in  a  mutual  insurance  company  operat- 
ing on  the  assessment  plan  is  bound  from  time  to  time  to 
pay  such  sums  as  shall  be  assessed  against  him  according 
to  the  by-laws  and  which  are  needed  to  pay  losses  and  ex- 
penses.^ The  scheme  of  co-operative  fire  insurance  is 
that  all  persons  insured  constitute  members  of  the  coin- 
pany,  becoming  such  by  taking  out  policies  and  being 
subject  to  assessments  from  time  to  time  to  pay  expenses 
and  losses.  They  may  if  they  choose  pay  in  advance  at 
the  outset  a  sum  estimated  as  probably  sufficient  to  meet 
all  accruing  losses,  but  they  still  remain  subject  to  assess- 
ment if  a  deficit  arises  in  the  fund  collected.^  Wlien  the 
by-laws  of  a  mutual  fire  insurance  company  provide  for 
advance  initial  payments  of  premiums  by  the  policy-hold- 
ers and  for  pro  rata  assessments  afterwards  if  necessary  to 
meet  losses,  the  directors  are  empowered,  whenever  the 
funds  in  hand  are  insufficient  to  pay  losses,  to  levy  assess- 
ments on  the  policy-holders  without  prehminary  notice.^ 
If  a  co-operative  fire  insurance  company  becomes  insolvent, 
its  policy-holders  are  liable  to  assessment  by  the  receiver 
to  pay  its  debts,  and  the  rights  of  creditors  and  hability 
of  members  are  determined  by  their  status  at  the  time  the 
receiver  was  appointed.^  In  New  York  a  member  of  a 
co-operative  fire  insurance  company  organized  under  the 
laws  of  that  state  is  only  liable  for  his  own  pro  rata  share 
of  the  losses  and  may  not  be  assessed  again,  after  once  pay- 

1  Ellerbe  v.  Barney,   119  Mo.  632. 

2  Skaneateles  Paper  Co.  v.  Amer.  Underwriters'  F.  Ins.  Co.,  114  N.  Y. 
Supp.  200.  3  Hammond  v.  Knox,  109  N.  Y.  Supp.  .367. 

*  Skaneateles  Paper  Co.  v.  Amer.  Underwriters'  F.  Ins.  Co.,  supra. 


364  Law  for  the  American  Farmer 

ing  his  proportionate  share,  to  make  up  a  deficiency  due  to 
defaults  of  fellow-members  in  paying  their  shares.^  And 
yet  it  has  also  been  decided  that  such  a  company  has  a 
right  to  assess  its  poUcy-holders  to  repay  loans  obtained 
to  make  good  deficits  in  previous  assessments  for  losses.^ 
The  holder  of  a  policy  in  a  co-operative  fire  insurance  com- 
pany which  is  absolutely  void,  because  by  law  the  company 
was  powerless  to  write  it,  receives  no  benefit  or  protection 
from  it  and  hence  is  not  liable  to  assessment.-^  But  one 
who  applies  for  and  receives  a  policy  of  fire  insurance  from 
a  co-operative  insurance  company  actually  carrying  on 
business,  and  who  pays  sundry  assessments  levied  upon 
him,  cannot  when  another  assessment  is  regularly  called 
successfully  resist  payment  on  account  of  irregularities 
in  the  incorporation  and  organization  of  the  company.* 
When  a  member  of  a  co-operative  insurance  company  with- 
draws, and  his  account  with  the  company  is  settled  and 
his  policy  canceled,  he  may  no  longer  be  called  upon  to  pay 
assessments.*  If  the  charter  of  a  mutual  fire  insurance 
company  requires  notices  of  assessments  to  be  given  to 
members,  a  policy-holder  may  be  put  in  default  for  non- 
payment of  his  assessment  only  by  giving  him  the  requisite 
and  prescribed  notice ;  his  independent  knowledge,  if  he 
has  any,  is  wholly  immaterial.®  A  by-law  of  an  assess- 
ment insurance  company  making  the  certificate  of  an 
officer  conclusive  as  to  the  mailing  of  notices  of  assess- 

1  Pratt  V.  Dwelling  House  Mut.  F.  Ins.  Co.,  7  App.  Div.  544. 

2  Rockland  &  H.  Town  F.  Ins.  Co.  c.  Bussey,  48  App.  Div.  359. 

3  Patrons,  etc.,  F.  Ins.  Co.  i'.  Plum,  84  App.  Div.  96. 

*  Rockland  &  H.  Town  F.  Ins.  Co.  v.  Bussey,  supra. 

*  Patrons,  etc.,  F.  Ins.  Co.  v.  Harwood,  64  App.  Div.  248. 
6  Miner  v.  Farmers'  Mut.  F.  Ins.  Co.,  117  N.  W.  211. 


Co-operative  Fire  Insurance  365 

ments  to  policy-holders,  when  such  officer  is  not  required 
to  have  personal  knowledge  of  the  mailing,  is  unreasonable 
and  void.^ 

§  238.     Rights   and  remedies  of  policy-holders  in  case  of 
loss. 

The  mere  withdrawal  of  a  member  from  an  unincor- 
porated voluntary  association  of  underwriters  insuring 
members  against  fire  losses  does  not  of  itself  alone  work  a 
cancellation  of  his  policy.^  The  fact  that  a  mutual  fire 
insurance  company  has  for  years  voluntarily  paid  losses 
due  to  lightning  to  policy-holders  insured  against  fire  only 
does  not  make  it  liable  to  another  pohcy-holder  who  had 
been  assessed  for  such  losses  for  the  destruction  by  light- 
ning without  fire  of  a  barn  insured  only  against  fire.^  A 
policy-holder  in  a  mutual  co-operative  fire  insurance 
company  who  has  suffered  a  loss  within  the  terms  of  his 
policy  may  maintain  an  action  against  the  officers  of  the 
company  personally  if  they  divert  to  other  purposes  funds 
collected  by  assessments  from  his  fellow-members  to  pay 
his  loss,  even  though  they  used  the  funds  to  pay  other 
equally  legitimate  claims.*  He  may  not,  however,  main- 
tain suit  against  the  officers  personally  for  devoting  to 
other  purposes  general  funds  of  the  association  which  were 
not  collected  by  assessments  to  pay  his  loss.^  A  member 
of  an  insolvent  mutual  assessment  insurance  company 

1  Duffy  V.  Fidelity  Mut.  Ins.  Co.,  142  N.  C.  103. 

2  Williamson  v.  Warfield,  etc.,  Co.,  136  111.  App.  168. 
»  Sleet  V.  Farmers'  Mut.  F.  Ins.  Co.,  113  S.  W.  515. 

*  Sherman  v.  Harbin,  124  Iowa,  643. 

«  Perry  v.  Farmers'  Mut.  F.  Ins.  Co.,  139  N.  C.  374. 


366  Law  for  the  American  Farmer 

may  not  set  off  his  claim  for  a  loss  covered  by  the  pohcy 
against  an  assessment  due  from  him  to  the  company.^  A 
by-law  of  a  mutual  insurance  company  which  provides 
that  the  neglect  of  a  m.ember  to  pay  his  premium  before  a 
stated  date  in  the  year  in  which  he  is  insured  shall  exclude 
him  from  participating  in  the  funds  collected  to  pay 
losses  is  a  reasonable  and  vahd  one.^ 

§  239,     Official  criticism  of  co-operative  fire  insurance. 

Associations  of  this  class  have  flourished  in  the  state  of 
New  York  for  about  three-quarters  of  a  century.  A  great 
many  of  them  have  been  organized  in  that  state  and  their 
operations  have  recently  ^  been  the  subject  of  a  pains- 
taking investigation  by  the  state  insurance  department, 
preliminary  to  regulative  legislation,  just  enacted.^  The 
companies  of  New  York  may  be  taken  as  typical  of  their 
class.  The  criticisms  of  them  will  apply  generally.  One 
of  these  relates  to  the  unskilled  manner  in  which  by-laws 
and  contracts  have  been  drawn  and  the  perplexing  am- 
biguity of  the  language  used,  making  it  difficult  when 
possible  to  determine  the  rights  and  obligations  of  members. 
The  attorney  general  of  the  state,  in  response  to  a  request 
to  know  the  meaning  of  one  of  the  forms  in  use  by  one  of 
these  companies,  said  :  You  ask  as  to  a  sample  blank 
which  you  inclose,  but  precisely  the  question  which  you 
desire  answered  concerning  it  I  am  unable  to  spell  out. 
After  reading  the  sample  blank  I  am  unable  to  fathom  the 

1  stone  V.  N.  J.  &  H.  R.  Ry.  Co.,  66  Atl.  1072. 

»  Nimic  V.  Security  Mut.  Hail  Ins.  Co.,  121  N.  W.  434. 

3  December,  1909. 

*  Vide,  L.  1910,  Chap.  328. 


Co-operative  Fire  Insurance  367 

purpose  of  the  mind  which  formulated  it.  It  would  be  for 
the  interest  of  co-operative  fire  insurance  companies  to 
have  their  by-laws,  policies,  and  apphcations  prepared  by 
a  competent  attorney.^ 

In  the  report  ^  of  the  investigation  above  mentioned,  the 
examiner  declared  it  doubtful  whether  all  pohcy-holders 
understood  that  their  policies  were  subject  to  assessment. 
All  of  these  associations,  in  comphance  with  the  law, 
said  he,  print  their  by-laws  on  the  back  of  the  policy, 
but  in  many  of  the  by-laws  it  is  very  difficult  to  deter- 
mine by  the  wording  whether  the  pohcy  is  assessable. 
In  fact,  he  added,  it  is  clear  from  complaints  received 
regarding  the  extra  assessments  levied  on  the  policy- 
holders of  the  associations  now  in  liquidation  that  the 
insured  believed  that  his  advance  premium  was  all  that 
could  be  collected. 

Anothqr  criticism  in  the  report  mentioned  ^  was  that 
many  of  these  associations  had  accumulated  surpluses 
over  the  amounts  needed  for  re-insurance  reserves,  while 
none  had  ever  declared  a  dividend,  and  in  a  few  cases 
only  did  directors  appear  to  have  power  under  the  by- 
laws to  distribute  any  part  of  a  surplus.  And  while 
by  law  an  insured  is  compelled  to  pay  his  'pro  rata  share  of 
the  losses,  the  law  has  not  provided  that  he  shall  share  in 
the  profits.  Most  of  these  associations,  it  was  said  again 
in  such  report,^  use  the  standard  form  of  policy  and  agree 
thereby  upon  a  cancellation  on  the  part  of  the  association 
to  return  the  pro  rata  share  of  the  premium,  or  when  the 

1  Letter  of  Atty.  Gen.  Jackson  to  E.  E.  Bohakek,  Rochester,  N.  Y., 
Feb.  17,  1908. 

2  Page  21.  »  Page  22.  *  Id. 


368  Law  for  the  American  Farmer 

cancellation  is  by  the  policy-holder,  to  return  the  short 
rate.  Unless  these  associations  have  on  hand  that  portion 
of  the  premium  which  has  been  unearned,  it  seems  clear 
that  they  cannot  carry  out  their  part  of  the  contract, 
excepting,  of  coarse,  that  their  policies  are  subject  to 
assessment. 


INDEX 


{The  references  are  to  pages.) 


Abandoned  animal  an  estray,  189. 
easement,     intentionally,    extin- 
guished, 69. 
irrigation  ditch,  right  to  remake 
and  use,  122. 
Abandonment,  delay  to  begin  use 
of  appropriated  water  an,  119. 
neglect  to  use  after  beginning  use 
of  appropriated  water  no,  123. 
neglect  to  use  irrigation  ditch  an, 
123. 
Abatement  of  nuisances,  143. 
Abating  nuisance  not  taking  prop- 
erty for  public  use,  143. 
Ability,   consignor  entitled  to  fac- 
tor's best,  291. 
Ablutions,    natural    right    to    use 

riparian  stream  for,  119. 
"About,"    meaning    of,    respecting 

quantities  sold,  259. 
Abrogation,  of  common  law  respect- 
ing irrigation,  116. 
oral,  of  written  contracts,  231. 
Acceptance,  express  warranty  sur- 
vives, 284. 
Accepted,  offer  to  sell  not  binding 

until,  253. 
Accepting  deed,  effect  of,  25. 

freely  with  knowledge  less  than 
full    claim    in    satisfaction    no 
duress,  247. 
goods    sold,    effect    of    buyer's, 

268. 
insurance    policy    conclusive    as- 
sent to  its  terms,  339. 
offer    to    sell    before    withdrawal 
makes  contract,  254. 


overdue  insurance  premium  after 

loss  not  known  ineffective,  344. 

overdue       insurance       premium 

waives  forfeiture,  356. 
unwittingly  unsafe  cars  no  excuse 

to  carrier,  314. 
useless  after  offer  to  sell  is  with- 
drawn, 254. 
Access,  other  means  of,  extinguishes 
way  of  necessity,  78. 
riparian   right    of,    to    navigable 
water,  102. 
Accidental  fire  not  an  act  of  God, 

306. 
Accident,    no    excuse    for  not   per- 
forming contract,  238. 
unavoidable,  distinct  from  act  of 
God,  304. 
Accidents,    excuse    delay  in    using 
appropriated  water,  119. 
in  farm  waters,  farmer's  liability 
for,  110. 
Accounts,    factor's    duty    to    keep 

correct,  291. 
Accretion,  acquiring  land  by,  20. 
defined,  20. 
imperceptible  growth  a  feature  of, 

21. 
never  changes  channel  boundary 
line,  61. 
Acknowledgement,  ordinary  receipt 

a  mere,  329. 
Acknowledging    undelivered     deed 
no   validation   of   oral   sale  of 
land,  227. 
Acquiescence,  owner's,  a  feature  of 
adverse  possession,  43. 


2b 


369 


370 


Index 


Acquiring  a  farm,  modes  of,  13. 
Acre  vegetable  lot  no  farm,  10. 
Acreage,  increased,  requires  new  ap- 
propriation for  irrigation,  121. 
statement  of,   in  deed,   no  war- 
ranty of  quantity,  49. 
Act,  no  particular,   needed  legally 

to  deliver  goods  sold,  262. 
Act  of  God,  distinct  from  unavoid- 
able accident,  304. 
examples  of,  304. 
legal  meaning  of,  303. 
loss  by,  excuses  carrier,  303. 
Action,  cause  of,  defined,  5. 
civil  and  criminal,  5. 
collusive,  a  contempt  of  court,  6. 
freedom    of,    essential    to    valid 

contract,  219. 
friendly,  judicially  approved,  5. 
lies    for    injuring    or    converting 

dog,  208. 
none    springs    from    illegal    con- 
tract, 239. 
Acts,    domestic    animals',    owner's 
liability  for,  192. 
farm      laborers',      farmer's     lia- 
bility for,  89. 
grantor's,      covenant      in      deed 

against,  29. 
legislative,  statute  law,  2. 
Actual  and  constructive  possession 
of  land,  37. 
sjTnbolical  delivery  of  goods  sold, 
261. 
Addition    consented    to    does    not 

avoid  deed,  25. 
Administrator,  emblements  pass  to, 

on  death  of  landowner,  174. 
Admission,  ordinary  receipt  only  an, 

329. 
Adulterate,  meaning  of,  161. 
Adulterated,  milk  diluted  by  water 

is,  161. 
Adulterating  food,  power  of  legis- 
lature to  interdict  and  punish, 
164. 


Adulteration   of  food   stuffs,   state 

legislation,  167. 
Advances,    factor's,    give    him    no 
license  to  choose  another  mar- 
ket, 290. 
factor's    right  to  be  re-imbursed 

for  his,  296. 
factor's  right  to  sell  to  repay  his, 

292. 
landlord's  lien  for  his,  to  tenant, 
180. 
Advantage,    easement   an,   in  land 
without  profit,  66. 
of  the  possession  of  land,  38. 
Adverse    possession,    beginning    of 
40, 
claim  of  title  in,  43,  45. 
distinction    in,    when  with    and 

without  color  of  title,  44. 
elements  of,  43. 
gives  a  marketable  title,  20. 
misplaced  line  fence,  45. 
right  of  way  gained  by,  74. 
squatter's,  43. 
title  acquired  by,  19-24. 
under  color  of  title,  41. 
Advice  to  farmers  selling  diseased 
animals,  278. 
parts  of  masses  of  produce,  258. 
Affirming    as    truth    what    one    is 

ignorant  of  a  fraud,  244. 
Agencies,  legislative  power  to  desig- 
nate irrigating,  131. 
Agency,     carrier's,     in     delivering 
goods  sold,  267. 
factors,  not  transferable,  291. 
man's,    without    part   in    act    of 
God,  303. 
Agents,  insurance,  errors  in  stating 
location  of  property,  347. 
insurance,   errors  in  writing  ap- 
plications, 343. 
insurance,  knowledge  of,  imputed 

to  company,  343. 
insurance,     limited     powers     of 
local,  351. 


Index 


371 


Agents,  Continued 

insurance,  promises  of,  to  renew 

insurance  insufficient,  344. 
to  sell  not  allowed  to  purchase, 
294. 
Agisters,  201,  202. 
Agreements,  see  Contracts. 

on    price    necessary    to    perfect 

sales,  250. 
oral  preliminary,  merge  in  writ- 
ten contracts,  221. 
settling  disputed  boundary  lines, 

57. 
to    use    appropriated    water    by 
tenants  in  common,  123. 
Agricultural  fixtures,  American  doc- 
trine of,  71. 
Alabama,  law  in,  act  of  God  fol- 
lowing carrier's  delay,  307. 
Alike,  principles  in  all  insurance,  335. 
All  or  none  who  contract  become 

bound,  220. 
Allowing  diseased  cattle  to  run  at 

large,  liabihty  for,  194. 
Alluvion,  formation  of,  21. 
Alteration,    oral,    of    written    con- 
tracts, 231. 
Alterations  in  deeds,  25. 
Altering    sealed    instrument,     oral 
authority  insufficient  for,  232. 
written    contract    not    permitted 
by  proof  of  preliminary  nego- 
tiations, 221. 
Ambiguity  of  the  word  farm,  47. 
Ambiguous  bill  of  lading  construed 
to  favor  shipper,  330. 
contracts  explained  by  intentions, 

221. 
insurance       policies       construed 
against  underwriters,  340. 
American  doctrine  concerning  farm 
fixtures,  71. 
respecting   sales   out   of   masses, 
256. 
Amount    of   liability,    canier   may 
lawfully  limit,  331. 


limit  to,   essential  in  insurance, 

335. 
Ancient     legal     rule,     landowner's 

duty  to  trespassers,  199. 
oral    cancellation    or    change    of 

sealed  contracts,  231. 
Animals,   see  particular    species,  — 

Dogs,    Hogs,    Horses,    Sheep, 

Stallions,  etc. 
acts  of  domestic,  owner's  liabil- 
ity for,  192. 
authority   to    kill    diseased,    no 

warrant  to  slay  healthy,  147. 
carrier's    duty   to    care    for,    in 

transit,  320. 
carrier's  duty  to  furnish  bedding 

for,  321. 
carrier's  duty  to  furnish  water  for, 

321. 
carrier's  liability  for  carrying  in 

infected  cars,  322. 
carrier's  liability  for  injuries  to, 

by  unsafe  cars,  314. 
carrier's  negligence  in  not  unload- 
ing, for  rest,  food,  and  water, 

321. 
carriers  not  obliged  to  transport 

diseased,  311. 
cruelty  to,  188. 
delivered    in    bad    condition    by 

carrier,  321. 
diseased,     owner's    liability    for 

allowing  to  run  at  large,  194. 
disfiguring,  penal  statute  against 

crueltj'  covers,  188. 
domestic,  progeny  of,  202. 
driving,  upon  open  land  trespass, 

199. 
djdng  in  public  streets;  carcasses 

"  of,  152. 
food  for,  not  embraced  in  pure 

food  laws,  164. 
grazing    in    highway    in    owner's 

view  not  running  at  large,  191. 
impounded,     summary    sale    of, 

191. 


•it  z 


Index 


Animals,  Continued 

in   charge   of   drover   asleep   not 

running  at  large,  191. 
inclusiveness  of  word  in  statutes, 

184. 
injuries  to  trespassing,  199. 
innocent  sales  of  diseased,  278. 
insurance   of,    against   lightning, 

345. 
insurance  of:  notice  of  sickness, 

356. 
insured  in  barns,  347. 
intermediate  status   of   dogs   be- 
tween domestic  and  wild,  206. 
issue   of,    chattel    mortgage   lien 

upon,  203. 
killed  by  fire  during  transporta- 
tion, 322. 
law  condemning  to  death  malig- 
nantly diseased,  constitutional, 

145. 
lawfully  driven  off  open  land,  199. 
laws  for  registration  of,  exercises 

of  police  power,  186. 
left  unattended   are  running   at 

large,  191. 
liability    for,    drowned    in    farm 

waters,  110. 
miscarriages  of,  due  to  carrier's 

negligence,  322. 
missing  in  round-up,  estrays,  190. 
municipal    sales    of    impounded, 

151. 
offspring  of,  owned  by  owners  of 

dame,  202. 
owner's    common    law    duty    to 

keep  at  home,  198. 
pasturing   of,    subject    to    police 

regulation,  202. 
police   laws   to   suppress   disease 

among,  142. 
public  streets  and,  151. 
pursuit    of,    after    escape    from 

highway,  lawful,  199. 
right     of     domestic,     to     water 

superior  to  irrigation,  119. 


roaming  without  a  caretaker, 
running  at  large,   190. 

roving,  are  estrays,  189. 

running  at  large,  190. 

running  at  large,  when  dogs  are 
and  are  not,  212. 

running  free  on  range  not  estrays, 
190. 

sales  and  deliveries  of,  263. 

sales  of  impounded,  must  strictly 
conform  to  law,  190. 

sold  and  missing  when  round- 
ed up  for  delivery,  title  to, 
264. 

statutes  concerning,  184. 

statutes  exempting,  from  execu- 
tion liberally  inclusive,  184. 

stray,  laws  for  impounding  and 
selling,  189. 

trespasses  of,  198. 

trespasses  of,  on  open  land,  55. 

trespasses  of,  on  open  land,  owner 
not  liable  for,  198. 

trespassing,  injuries  to,  by  barbed 
wire  fence,  56. 

tuberculous,  municipal  power  to 
destroy,  150. 

vicious,  farmer's  liability  to  farm 
hand  injured  by  his,  90. 

wandering  and  feeding  at  will, 
running  at  large,  190. 

wandering  temporarily  not  es- 
trays, 190. 

warranties  of  food  sold  for,  278. 

warranties  of,  sold  for  breeding, 
282. 

warranties    of,    sold    for    human 
food,  277. 
Annexation  to  land,   best  but  not 
absolute  test  of  fixture,  69. 

effect  of,  of  a  chattel,  52. 
Answers  in  applications  for  insur- 
ance warranted  true,  341. 
Antiquity  of  contracts,  216. 
Apparent    easement,  hidden  water 
conduit  from  well,  an,  79. 


Index 


373 


Appleton,  Chief  Justice,  of  Maine, 

opinion  of,  on  dogs,  207. 
Applicant,    truthful,    not    charged 
with  insurance  agent's  errors, 
343. 
Application,  merely  signing,  effects 

no  insurance,  337. 
Appropriated     water,     nature     of 
property  right  to,  127. 
need  of  measuring,  137. 
neglect  to  use,  no  loss  of  right  to, 

123. 
use  of,  not  restricted  to  riparian 

land,  125. 
spring  water  an  appurtenance  to 
irrigation  ditch,  128. 
Appropriating   water,    necessity   of 
strictly    following    statute    in, 
118. 
Appropriation     of     specific     goods 
sold  indispensable  to  sale,  255. 
Appropriation  of  water,   beneficial 
use  the  final  step  in,  118. 
confers  a  vested  right,  117. 
doctrine  of,  stated,  116. 
for  irrigation  a  public  use,  129. 
method  of  making  an,  117. 
priority  in  time  priority  in  right, 

117. 
spring  on  public  lands,  128. 
substitution   of   doctrine   of,    for 
common  law  of  riparian  right, 
116. 
what  it  consists  in,  117. 
Appropriator    need    not    own    the 

irrigated  land,  125. 
Appurtenances  and  easements,  65. 
growing  crops  not  reserved  pass 

by  deed  as,  172. 
merely  conveyed  not  created  by 

deeds,  66. 
rights  of  way  are,  73. 
wells  are,  in  mechanics'  lien  laws, 
89. 
Appurtenant,    appropriated   spring 
to  irrigation  ditch,  128. 


spring  and  aqueduct,  78. 

water  appropriated  for  irrigation, 

to  the  irrigated  land,  127. 
water  rights,  79. 
Aqueduct  from  appurtenant  spring, 
78. 
hidden,    an   apparent    easement, 
79. 
Arbitrarily,   discretion  never  exer- 
cised, to  decree  or  deny  spe- 
cific performance,  234. 
Arbitrary  police  legislation  uncon- 
stitutional, 140. 
Arbitration    in    insurance    useless 
when  all  liability  is  denied,  357. 
Area,  enlarged,  requires  new  appro- 
priation for  irrigation,  121. 
of  the  farm,  49. 
of  land  subject  to  mechanic's  lien, 

88. 
of  riparian  land  irrigable,  115. 
of  sheet  of  water  does  not  de- 
termine its  name,  93. 
Arid    land,     reclaiming,     work    of 
pubHc  utUity,  129. 
region,  extent  of,  in  the  United 

States,  115. 
the     state     trustee    of    natural 
streams  in,  128. 
Arkan.sas,  theft  of  a  dog  larceny  in, 

208. 
Arm  of  the  sea  included  in  farm 

waters,  92. 
Articles,     deliverj'     of     heavy     or 
bulky,  after  sales,  262. 
sold  by  count,  measure,  or  weight 
completing  sales  of,  255. 
Artifice,   securing   by,   performance 

of  legal  duty,  no  fraud,  243. 
Artificial  monuments  in  boundary 
lines,  54. 
water-course  may  be  either  natu- 
ral or,  94. 
Ash,   law  requiring  less  than   one 
per  centum  of,  in  milk  on  sale 
valid,  161. 


374 


Index 


Asportation  of  real  property  not 
larceny  but  trespass,  177. 

Assault,  employer's,  justifies  la- 
borer in  quitting  service,  85. 

Assent   by   both   parties   to   terms 
necessary  in  sale,  250. 
presumed  when  insurance  policy 
is  accepted,  339. 

Assessment,  see  Insurance  and 
Policy-holders. 

Assessments  to  pay  irrigation  bonds, 
133. 

Associations,    co-operative   fire   in- 
surance, 359. 
irrigators',  133. 

state  may  forbid  voluntary,  to 
transact  insurance  business, 
360. 

Assuming  as  a  basis  non-existing 
facts  invalidates  contract,  247. 

Attempt  useless  when  perform- 
ance of  contract  is  impossible, 
237. 

Authority,   limitations   of   factor's, 
290. 
to  kill  diseased  beast  no  warrant 
to  slay  sound  one,  147. 

Automobile,  duty  to  stop,  until 
frightened  horse  is  controlled, 
197. 

Average,  principle  of,  underlies  all 
insurance,  359. 

Avulsion,  defined,  63. 

works  no  change  of  boundary,  63. 

Bad   faith,   factor  has   no   lien   on 
goods  got  by,  296. 
order,    carrier's   liability   for   de- 
livering freight  in,  319. 
repute,    dog's,    may   be    proved 
against  its  master,  211. 
Bailee,   distinction   between   factor 

and,  288. 
Bailment,  consignment  to  factor  a, 
298. 
distinction  between  sale  and,  251. 


Baldwin,  Judge  Simeon  E.,  quoted, 
145. 

Bank,    factor   may   deposit   collec- 
tions in  his  own  name  in,  289. 
liability    of,    to    consignors    for 
factors'  deposits,  298. 

Bankruptcy,  factor's,  does  not  end 
authority  to  bank  collections, 
289. 
farmers  exempt  from  involuntary, 
8. 

Banks,  right  and  left,   of  streams, 
63. 
water-course,  none  without,  94. 

Barbed    wire    fences,    injuries    to 
cattle  by,  56. 

Barking  dog,  lawful  and  unlawful 
killing  of,  213,  214. 

Barley    covered    by    insurance    of 
grain,  346. 

Earns,  insurance  on  property  con- 
tained in,  347. 

Bars  across  ends  of  rights  of  way, 
75. 

Barter,  factor  no  right  to  dispose 
of  consignment  by,  290. 

Bathe,  riparian  owner's  right  to,  in 
stream,  101. 

Beans,  probably  covered  by  insur- 
ance of  grain,  346. 

Beasts  of  burden,  dogs  not  classed 
as,  206. 

Bed,  lake,  includes  only  submerged 
soil,  93. 
no  water-course  without  a,  94. 

Bedding  for  stock  in  transit,  carrier 
should  furnish,  321. 

Bell  hung  on  posts  no  fixture,  72. 

Beneficial      use      of      appropriated 
water,  exchange  of,  122. 
feature  in  doctrine  of  appropria- 
tion, 117. 
final  step  in  appropriating  water, 
118. 

Benefit,    insurance    company    may 
waive  a,  to  itself,  356. 


Index 


375 


Beuevolent  enterprise,  co-operative 

insurance  not  a,  361. 
Best     obtainable     terms,     factor's 

duty  to  sell  on,  291. 
Bicycle     rider,     equal     right     with 

driven  horse  in  highway,  198. 
Bill   of  lading,   contract  for  trans- 
porting freight,  329. 
dual  character  of,  329. 
existing  contract  not  superseded 

by,  331. 
good   written    with   lead   pencU, 

331. 
receipt  for  freight,  329. 
stipulations  lawfully  inserted  in, 

330. 
when  not  open  to  contradiction, 

330. 
when  open  to  explanation,  329. 
Bills  of  sale  indica  of  deliveries,  263. 
Binder,    example    of    implied    war- 
ranty in  sale  of,  272. 
Binding,  carrier's  reasonable  rules, 
on  the  public,  326. 
offer  to  sell  must  be  accepted  to 

be,  253. 
slip,  a  temporary  insurance  con- 
tract, 337. 
unread    contract   unless   reading 
was  prevented  by  fraud,  is,  236. 
Blackberries  unpicked   not   emble- 
ments, 174. 
Blackstone's   definition   of   a   sale, 

250. 
Blinds,  window-,  fixtures,  70. 
Board,    farm    laborers    entitled    to 

good,  85. 
Boards     of     Health,     see    Health, 

boards  of. 
Boars,   embraced  in   statutes   con- 
cerning hogs  or  swine,  184. 
Boating,  right  of  private,  on  navi- 
gable stream,  95. 
Bodies  of  water,  93. 
"Bohemian   oats"    scheme,    illegal 
gambling  contract,  241. 


Boiler,  when  no  fixture,  72. 
Bolting  horse,  duty  of  owner  to  be 

wary  of,  197. 
Bonds,  irrigation  district,  132. 
Border,    lowland,    not   included   in 

lake  bed,  93. 
Bottles,  milk,  laws  requiring  fluid 
capacity  to  be  shown  by,  163. 
Bound,   all  parties  or  none,   by  a 

contract,  220. 
Boundaries  of  the  farm,  53. 
Boundary,  farm,  center  of  highways 
and  streams,  48. 
channel  of  stream,  62. 
courses  control  distances  in,  54. 
high-water  mark,  62. 
highway,  60. 
how  run,  54. 

lines,    aviilsion  changes  not,  63. 
low-water  mark  on  large  lakes,  63. 
meandering,  62. 
missing  line,  how  found,  55. 
mistaken  line  in  adverse  posses- 
sion, 45. 
oral  agreement  settling  disputed, 

valid,  228. 
repealing  law  making  river  a  pub- 
lic highway  does  not  extend, 
97. 
river  bank,  49. 
sea  or  lake  shore,  49. 
settlement  of  disputed,  58. 
trees  growing  on,  59. 
trespass  to  cross  without  license, 

53. 
visible  and  invisible,  53. 
water-course,  62. 
Brand,    buyer's   on   cattle   bought, 

evidence  of  delivery,  264. 
Breaches  of  covenants  in  deeds,  31. 
Breach  of  warranty  in  sale  of  seed, 

rule  of  damage,  275. 
Breeding,  implied  warranty  of  ani- 
mals sold  for,  282. 
Brewers'  grains  and  slops  unfit  food 
for  milch  cows,  157. 


376 


Index 


Broker,  distinction  between  factor 

and,  288. 
Browne    (J.    H.    Balfour),    Law   of 

Carriers  quoted,  1. 
Browsing,  cattle,  on  open  land  ex- 
cusable trespass,  198. 
Buckwheat,   covered   by  insurance 

of  grain,  346. 
Buildings,  generally  fixtures,  70. 

land  includes,  50. 
Bulk,   American  doctrine  of    sales 
out  of,  256. 
separation  from,  of  propertj'  sold, 

indispensable,  255. 
wiser  practice  in  selling  out  of, 
258. 
Bulky  articles  sold,  delivery  of,  262. 
Burden    of    proving    invaliditj'    of 

contract,  237. 
Bursting,    casks,   by   fermentation, 

carrier  not  liable  for,  320. 
Business,  private,  regulated  by  the 
police  power,  139. 
statutory  regulation  of  commis- 
sion sales,  299. 
Butter-fat,     law     requiring     small 
percentage    of,     in    milk    sold 
valid,   161. 
Butter,  imitation,  state  legislation 
against,  168. 
spoiled  by  carriage  in  warm  cars, 
carrier's  liability  for,  313. 
Buy,  agent  to  sell  not  allowed  to, 

'  294. 

Buyer,   delivery  to,   of  goods  sold 

made  by  delivery  to  common 

carrier,  266. 

discharged  by  pajang  factor,  289. 

implied  license  of,  to  go  on  land 

for  his  purchase,  81. 
of   land    entitled    to   marketable 
title,  23. 
Buyer's  accepting  goods  sold,  effect 
of,  268. 
recourse  after  paying  for  perish- 
able fruit  warranted  sound,  277. 


refusal   of  goods    sold,   remedies 

for,  269. 
rights  and  remedies  in  warranted 
sales,  283. 

Buying  a  farm,  23. 

By-law  denying  insurance  to  non- 
paying  member  valid,  366. 

By-laws,  co-operative  fire  insurance 
association's  a  part  of  its  poli- 
cies, 362. 

Cabbage  seed,  examples  of  implied 
warranties  in  sales  of,  275. 

California,    chattel    mortgage    lien 
on  progeny  of  mortgaged  live- 
stock in,  204. 
unreaped  grain  classed  with  em- 
blements in,  175. 

Canal,  drainage,  a  water-course,  94. 

Canals,  irrigating,  exemptions  of, 
from  separate  taxation,  128. 

Canceling  insurance,  see  Insurance. 

Capacity  not  used  for  navigation 
test  of  navigability,  96. 

Capriciously,  courts  never  act,  in 
suits  for  specific  performance 
of  contracts,  234. 

Carcasses,  removal  of,  when  animals 
die  in  streets,  152. 

Cardinal  rule  for  construing  con- 
tracts, 221. 

Care,  carriers  held  to  the  greatest, 
302. 
duty  of,  in  transporting  animals, 

320. 
factor's    duty    to    take,    of    con- 
signed goods,  291. 

Careful,  duty  of  farm  laborer  to  be, 
84. 

Carelessness,  see  Negligence. 

Carpet.:  nailed  down  never  fixtures, 
70. 

Carriage  horses  not  exempt  as  work 
horses,  185. 

Carriages,  insurance  on,  in  barns, 
347. 


Index 


?,Ti 


Carrier,  agent  of  buyer,  when,  to 

receive  goods  sold,  267. 
agent  of  seller,  when,  to  deliver 

goods  sold,  267. 
charges  of,  must  be  reasonable, 

302. 
common,  defined,  301. 
contract  of,  to  transport  freight 

an  insurance,  318. 
duties  of,  310. 
duty  of,  to  avoid  public  enemies, 

308. 
duty  of,  to  care  for  live-stock  in 

transit,  320. 
duty  of,  to  delay  not  nor  deviate 

from  route,  316. 
duty  of,  to  deliver  freight  to  con- 
signee, 318. 
duty  of,  to  furnish  bedding  for 

live-stock  in  transit,  321. 
duty  of,  to  furnish  cars,  311. 
duty  of,  to  furnish  cars  free  from 

defects,  313. 
duty   of,    to   furnish   refrigerator 

cars,  312. 
duty  of,  to  furnish  safe  cars,  314. 
duty  of,  to  furnish  suitable  cars, 

312. 
duty  of,  to  have  equipment  for 

busiest  season,  312. 
duty  of,  to  keep  refrigerator  cars 

in  ice,  323. 
duty    of,    to    make    lost    freight 

good,  318. 
duty    of,    to    notice    marks    on 

perishable  freight,  323. 
duty  of,  to  provide  water  for  live- 
stock in  transit,  321. 
duty  of,  to  receive  ofTered  freight, 

310. 
duty  of,  to  receive  offered  freight 

destined  beyond  its  line,  310. 
duty    of,     respecting    perishable 

freight,  322. 
duty  of,  to  shower  hogs  in  transit, 

321. 


effect  of  delivery  to,  of  goods  sold, 
266. 

excused  by  acts  of  God,  303. 

excused  by  acts  of  public  enemies, 
308. 

excused  by  acts  of  striking 
laborers,  309. 

exemptions  of,  in  drover's  pass 
void,  333. 

exemptions  of,  extorted  from 
shipper  void,  328. 

forbidden  to  contract  against 
consequences  of  its  own  neg- 
ligence, 327. 

greatest  care  and  diligence  re- 
quired of,  302. 

insurer  of  goods  transported, 
303. 

liability  of,  for  freight  lost  or 
damaged,  303. 

liability  of,  for  freight  injured  by 
frost,  307. 

liability  of,  for  freight  received 
sound  delivered  in  bad  order, 
319. 

liability  of,  for  fruit  unloaded  in 
zero  weather,  306. 

liability  of,  for  perishable  freight, 
331. 

liability  of,  for  refusing  to  carry 
fruit,  311. 

liability  of,  none  for  freight  lost 
through  intrinsic  defects,  332. 

liability  of,  to  drover  traveling 
with  live-stock,  333. 

liability  of,  to  purchaser  of  dis- 
eased beast  imported  unlaw- 
fully, 195. 

limitation  of  its  liability  by 
special  contract,  326. 

may  contract  for  exemption  from 
loss  by  mobs  and  strikes,  326. 

may  limit  its  liability  for  fragile 
and  perishable  freight,  331. 

may  not  compel  shipper  to  waive 
his  rights,  310. 


378 


Index 


Carrier,  Continued 

may  not  contract  for  immunity 
from  its  own  faults,  328. 

may  not  require  shipper  to  insure 
freight  for  it,  331. 

may  prescribe  time  limit  for  pre- 
senting claims,  326. 

may  refuse  some  freight  except 
at  shipper's  risk,  330. 

may  set  a  limit  to  the  amount  of 
its  liability,  331. 

methods  of,  for  escaping  liabili- 
ties, 325. 

negligence  of,  concurring  with 
act  of  God,  306. 

negligence  of,  in  not  unloading 
animals  for  rest,  food,  and 
water,  321. 

negligence  of,  occasioning  mis- 
carriages in  animals  during 
transit,  322. 

negligence  of,  presumed  from  fail- 
ure to  deliver  freight,  318,  319. 

negligence  of,  when  fire  destroys 
live-stock  in  transit,  322. 

negligence  of,  when  infected 
cattle  cars  are  used,  322. 

never  an  insurer  of  goods  that 
naturally  decay,  332. 

not  obliged  to  transport  infected 
cattle,  311. 

obligations  of,  broader  to  goods 
than  to  live-stock,  320. 

obliged  to  take  freight  only  at 
stations,  311. 

public  obligations  of,  302. 

responsibility  of,  for  freight  car- 
ried, 319. 

right  of,  to  insert  exemptions  in 
bills  of  lading,  330. 

right  of,  to  make  rules  and  regu- 
lations, 325. 

rule  of,  respecting  icing  and  ven- 
tilating  refrigerator   cars,  324. 

strict  liability  of,  qualified  by 
exceptions,  319. 


terminal  freight  accommodations 

of,  315. 
unreasonable  rules  of,  void,  325. 
Carter,  James  C,  eminent  lawyer, 

quoted,  2,  4. 
Cattle,  see  Animals. 
Cause  of  action,  meaning  of,  5. 
Center  of  earth,  ownership  of  land 
extends  down  to,  49. 
stream  or  highway  boundary  line 
of  land,  48,  60. 
Certain,  that  which  can  be  made 

certain  is,  25. 
Certainty   necessary   in   describing 

lands  in  deeds,  25. 
Certificate,    health,    for    imported 
live-stock   constitutionally   re- 
quired, 142. 
Chain   of  title,   identity  of  names 

and  persons  assumed  in,  15. 
Change  consented  to  never  avoids 
deed,  25. 
courts    powerless    to,    insurance 

contracts,  338. 

of  possession  and  of  title  double 

meaning  of  delivery  of  goods 

sold,  261. 

of  use  of  appropriated  water,  122. 

of  use  of  insured  property,  effect 

of,  349. 
point  of  diverting  water  to  irri- 
gate, right  to,  121. 
Changed,    right    of   way,    only   by 
consent    of    both    landowners, 
74. 
Changes,  none  made  in  written  con- 
tracts by  proof  of  preliminary 
negotiations,  221. 
Channel,  boundary  line  unchanged 
by  accretions,  61. 
drainage,  a  water-course,  94. 
middle  of,  of  stream,  the  bound- 
ary line,  48. 
necessary    feature    of    a    water- 
course, 94. 
of  stream  defined,  95. 


Index 


379 


Character  of  irrigation  conduits  and 
works,  121. 

Characteristics   of   irrigation    com- 
panies, 133. 

Charity,  co-operative  insurance  not 
a,  361. 

Charter  of    co-operative  insurance 
company  part  of  all  its  policies, 
362. 
of  irrigation   company,    what   it 
confers,  134. 

Chasing  trespassing  cattle  no   ex- 
cuse for  killing  dog,  213. 

Chattel,  appurtenance  to  land  only 
when  a  fixture,  72. 
importance  of  intent  in  annexing, 

to  land,  70. 
lien  upon,  for  labor,  89. 
mortgage,   effect  of,   on  title  to 

mortgaged  property,  203. 
mortgage,  lien  of,  on  increase  of 

domestic  animals,  203. 
mortgage,  priority  of,  to  agister's 

lien,  202. 
physical     annexation      to     land 
makes  fixture  of,  69. 

Chattels,  sold, appropriating  the  spe- 
cific, indispensable  in  sales,  255. 
sold,  features  in  delivery  of,  261. 
specific  performance  of  contracts 
concerning,     seldom     decreed, 
236. 

Cheese,   filled,   constitutionality  of 
tax  upon,  167. 

Chemicals,  riparian  owner  liable  for 
casting,  in  stream,  101. 

Chest,  symbolical  delivery  of  con- 
tents of,  263. 

Chicken  coop,  no  nuisance  if  kept 
clean,  150. 

Chickens,    killing,   unlawfully,   cru- 
elty to  animals,  189. 

Child,    farmer's    liability    when,    is 
drowned  on  farm,  110. 

Choice,    among    possible   construc- 
tions of  contracts,  222. 


seller's,  of  time  to  deliver  com- 
modity sold,  233. 

Choses-in-action,    meaning    of    the 
term,  217. 

Cider  mill  and  press,  not  fixtures, 
72. 

Circumstances  aid  in  interpreting 
contracts,  222. 

City     ordinances,     application     of, 
to  visiting  farmers,  149. 

Civil  actions  defined,  5. 

rights    regulated    by    the    police 
power,  139. 

Claim,    against    carrier,  lawfulness 
of  limitation  of  time  to  present, 
326. 
of  title  in  adverse  possession,  43, 
45. 

Classification,  of  contracts,  217. 
of    servants,     English,     not    fol- 
lowed  in   the    United    States, 
82. 

Clean  lodging,  farm  laborer  entitled 
to,  85. 

Clear,  factor's  instructions  should 
be,  294. 
receipt  for  freight  delivered  in- 
conclusive, 319. 
wording  given  effect  in  insurance 
policies,  341. 

Clearing  up  debris  of  fires,  policy- 
holder's right  of,  356. 

Clogging    irrigation    ditch,    injunc- 
tion against,  123. 

Closure,  right  of  way  extinguished 
by  permanent,  75. 

Coal   underneath   farm,   ownership 
of,  51. 

Collar,  dog's,  name  on,  evidence  of 
ownership  of  dog,  211. 

Collect,  factor  authorized  to,  price 
of  goods  sold,  2S9. 

Collision,  liability  for,  when  driving 
on  wrong  side  of  road,  197. 

Collusive  judgments  nullities,  6. 
suit  contempt  of  court,  6. 


380 


Index 


Color,  imitation  buttfr.  government 
power  to  prescribe,  168. 
of  title,  adverse  possession  under, 

41. 
of  title,  defined,  41. 
Colorado,    statute    of,    relating    to 

docked  horses,  186. 
Coloring,  adulterating  food  by,  165. 
Colts,  exempt  as  horses  from  exe- 
cution, 185. 
Comfort,  public,  promoted  by  the 

police  power,  139. 
Commerce,     national     food     laws, 

regulations  of,  166. 
Commission  merchants,  before  the 
law,  287. 
customs  and  usages  of,  295. 
statutory  oversight  of,  299. 
Commissions  lost  by  factor's  will- 
ful breach  of  duty,  296. 
Common  carriers,  see  Carriers. 
Common  law,  abrogated  respecting 
irrigation.  116. 
derivation  of  American,  3. 
dogs  not  subject  of  larceny  at,  210. 
duty  of  animal   owners  to  keep 

them  at  home,  198. 
governs  where  there  is  no  statute, 

3. 
irrigation  at,  112,  113. 
nature  of,  3. 

navigability  of  stream  at,  96. 
recorded  judicial  decisions  make, 

2. 
rule     against     factor's     pledges 
modified,  290. 
Company,     insurance,     has     same 
right  of  contract  as  if  an  in- 
dividual, 337. 
Compelling  specific  performance  of 

contracts,  234. 
Compensation,    agister's    lien    for, 
201. 
factor's,  296. 

farm  laborer's,  when  discharged 
without  cause,  86. 


farm  laborer's,   when  wages  are 

not  agreed  upon,  86. 
log  driving  by  necessity,  statute 

of  Wisconsin,  99. 
requisite   in    condemning   water- 
right  for  public  use,   126. 

Competency,  legal,  of  parties  es- 
sential to  valid  contract,  219. 

Complete,  terms  of  oral  insurance 
must  be,  336. 

Completing    an    appropriation    of 
water,  final  step  in,  118. 
a  contract  of  insurance,  336. 
sales  of  personal  property,  261. 

Components  of  farm,  48. 

Compromise,  entertaining  offer  to, 
implies  no  waivers,  357. 

Compulsory  payments  may  be 
recovered  back,  245. 

Concealing  musty  under  sound 
corn  a  breach  of  warranty, 
276. 

Concealment,  fraudulent,  equiva- 
lent to  open  falsehood,  244. 

Conclusive,    constitution    and    by- 
laws, upon  co-operative  policy- 
holders, 362. 
presumption  that  voluntary  con- 
tract was  read  and  understood, 
236. 
receipts  are  usually  not,   329. 
shipper's  statement  of  value  of 
freight,  on  him,  331. 

Concurrent  negligence  of  carrier 
and  act  of  God,  306. 

Condemnation  of  right  of  way  for 
irrigation  ditch,  130. 

Condemned  milk,  seizing  and  de- 
stroying, without  paj'ment  law- 
ful, 159^ 

Conditionally  accepting  offer  to  sell 
equivalent  to  rejecting,  254. 

Conduct,  personal,  governed  by  the 
police  power,  140. 

Conduit,  water,  from  appurtenant 
spring,  78. 


Index 


381 


Conduit,  ContinufiA 

for   irrigation,    any    kind    of,    al- 
lowed, 121. 
hidden,  an  apparent  easement,  79 
Confiscating  milk  below  prescribed 

standard  lawful,  160. 
Conflagration    not    classed    as    act 

of  God,  306. 
Conflict,  judicial,  see  Judicial  con- 
flict. 
Congressional    pure    food    legisla- 
tion, 166. 
Connecticut,     American     doctrine 
of  sales  from    masses  in,  257. 
law  in,   authorizing  killing  dogs 
doing  mischief,  213. 
Consent  of  both  landowners  needed 

to  change  right  of  way,  74. 
Consideration,  basis  of  every  con- 
tract, 220. 
inadequacy  of,  will  not  avoid  con- 
tract, 237. 
indispensable  to  valid   contract, 

219. 
necessary   concomitant   of   sales, 

251. 
oral  proof  of  real,  of  deed,  26. 
premium,  of  insurance  contract, 

334. 
reduced     freight,     for      limiting 

carrier's    liability,    328. 
return  or  tender  of,  condition  of 

release   from   contract,   236. 
small,  sufficient,  221. 
Consignment,    fruit    for    sale,    ex- 
ample of,  297. 
Consignor,      entitled     to     factor's 
profits  of  sale  to  himself,  295. 
factor's  liability  to,  293. 
implied   agreement  of,   to  make 

factor's  advances  good,  296. 
liable  to  factor  for  deficit,  297. 
liability    to,    of    purchaser    from 

factor,  299. 
right  of,  to  factor's  bank  deposit, 
298. 


title  of,  to  consigned  goods  and 
their  proceeds,  298. 
Constitution   part   of   co-operative 

insurance  policy,  362. 
Constitution  the  only  limit  of  the 

police  power,  140. 
Constitutional     bans    on    limiting 
liability  of  carriers,  328. 
law    for    summary    slaughter    of 

sheep-killing  dogs,  214. 
law  imposing    liability  for  dam- 
ages by  stock  to  roads,  194. 
power    of    state   to   forbid  addi- 
tion of  anything  to  milk  sold, 
162. 
right  of  freedom  of  contract,  216. 
Constitutionality,  of  factor's  acts. 
299. 
of  penal  laws  against  counterfeit 

butter,  168. 
of  pure  milk  laws,  157. 
of  statute  creating  irrigation  dis- 
tricts, 132. 
of  summary  sale  of  impounded 
animals,  191. 
Constitutions,  statute  law,  2. 
Construction  and  interpretation  of 

contracts,  221. 
Constructive   contracts   a   class  in 
litigation,  217. 
contracts  defined,  219. 
deliveries  of  goods  sold,  262. 
possession  of  land,  38. 
Construing  insurance  policies,  rules 

for,  340. 
Consumers,  duty  of  irrigation  com- 
pany to  supply  water  to,  135. 
old,  preferred  to  new  applicants 
by  irrigation  companies,    135. 
Contagion,  agister's  duty  to  guard 

healthy   stock   against,   201. 
Contagious    diseases,    animals    in- 
fected with,  liability  of  sellers 
of,  194. 
of    animals    and    plants    justify 
police    legislation,     142. 


382 


Index 


"Contained  in,"  descriptive  phrase 

in  insurance  policies,  347. 
Contamination     of     appropriated 
water,  injunction  against,  123. 

of  milk  easy,  156. 
Contents,  of  deeds,  26. 

of  insurance  policy,  knowledge  of, 
imputed  to  holder,  339. 

of    notice    of     appropriation    of 
water  for  irrigation,  117. 
Continuous  and  discontinuous  ease- 
ments, 68. 

occupancy  a  feature  in  adverse 
possession,  43. 

use  of  right  of  way  unnecessary, 
76. 
Contracts,   216.       See   also    Agree- 
ments. 

accident  no  excuse  for  not  per- 
forming, 238. 

acceptances     of     offers     to     sell 
make,  254. 

all,    in    ^^olation    of    law    void 
absolutely,  239. 

all,  nullified  by  fraud,  243. 

avoided  for  false  representations 
of  material  facts,  244. 

avoiding  the  performance  of,  236. 

between    co-operative    insurance 
company  and  its  members,  362. 

bills  of  lading  both  receipts  and, 
329. 

bind  none  unless  they  bind   all 
parties,  220. 

burden  of  proving  invalidity  of, 
237. 

carriers',    insurances    of    freight, 
318. 

carriers',  unlawful  for  immunity 
from  their  own  negligence,  327. 

choice  among  possible  construc- 
tions of,  222. 

classification  of,  for  purposes  of 
litigation,  217. 

compelling   specific   performance 
of,  234. 


completing  insurance,  336. 

concerning  real  property,  227. 

construction  and  interpretation 
of,  221. 

construed  as  entireties,  222. 

contrary  to  statutes  nullities,  239. 

courts  powerless  to  change  insur- 
ance, 338. 

cropper's,  to  deliver  landlords' 
share,  when  performed,  181. 

definitions  of,  216. 

effect  of  entire  or  part  perform- 
ance of  oral,  230. 

elements  in  insurance,  335. 

enforcement  of,  233. 

excuses  for  not  performing,  237. 

executory  and  executed,  217. 

exempting  carriers  extorted  from 
shippers  void,  328. 

exempting  carriers  from  loss  by 
strikes  and  mobs,  valid,  326. 

existing,  not  superseded  by  bills 
of  lading,  331. 

extorted  by  withholding  prop- 
erty void,  246. 

factors  in  the  interpretation  of ,  222. 

factors  not  obliged  to  obey  orders 
contrary  to  their,  292. 

farm  laborer's,  affected  by  statute 
of  frauds,  82. 

for  farming  on  shares,  nature  of, 
90,  181. 

for  farming  on  shares  should  be 
recorded,  91. 

for  fire  insurance  always  term 
contracts,  343. 

freedom  to  make,  a  constitu- 
tional right,  216. 

growing  crops  on  shares  not  part- 
nerships, 181. 

implied  that  consignors  shall 
repay  factors'  advances,  296. 

inadequacy  of  consideration  no 
ground  for  avoiding,  237. 

incidental  mistakes  insufficient 
to  avoid,  247. 


Index 


383 


Contracts,  Continued 

indispensable  elements  in,  219. 
insurance,  called  policies,  335. 
insurance,     company's    right     to 

make,  same  as  an  individual's, 

337. 
insurance,    engagements   to   pay 

money  on  contingencies,  334. 
insurance     policies     purely     per- 
sonal, 338. 
intention   overrules   language   in 

construing,  221. 
language   of,    reflects   their   sub- 
jects, 222. 
language  of,  untechnical,  has  its 

popular  sense,  222. 
laws  of  place  where,  are  made, 

parts  of  them,  223. 
letters  and  telegrams  make  good, 

254. 
liberty  to  make,  an  inalienable 

right,  216. 
limitation    of    carrier's    liability 

by  special,  326. 
limiting  time  to  sue  for  insurance 

lawful,  358. 
made  under  a  mistake,  247. 
misfortune    no    excuse    for    not 

performing,  238. 
mistakes  in  making,  proved  orally, 

248. 
not   to    be    performed    within    a 

year,  228. 
obtained  by  fraud,  242. 
oral  abrogation  or  alteration  of 

written,  231. 
oral,  enforced  to  prevent  fraud, 

231. 
oral,     granting     easements     not 

good,  67. 
oral,  granting  rights  of  way  void, 

74. 
oral,  insurance,  co-operative  com- 
pany may  make,  359. 
oral,  insurance,  made  with  agent, 

must  name  company,  337. 


oral,  insurance,  valid,  335. 
oral,  labor  and  work,  valid,  226. 
oral,  manufacturing,  valid,  226. 
oral,  not  to  be  performed  within 

a  year  bad,  228. 
oral,  performance  of,  in  whole  or 

part,  effect  of,  230. 
oral,  relating  to  real  estate  usu- 
ally void,  227. 
oral,  selling  grasses  growing  wild, 

invalid,  227. 
oral,  selling  land  not  validated  by 

paying  price,  227. 
oral,     selling     standing     timber 

invalid,  228. 
oral,  settling  disputed  boundaries 

good,  58,  228. 
oral,  unenforceable  but  not  illegal 

by  statute  of  frauds,  226. 
oral,  validity  of,  in  general,  225. 
oral,  written  and,  224. 
performance    of,     impossible    to 

perform  need  not  be  attempted, 

237. 
predicated  of  non-existent  facts 

invalid,  247. 
procured  by  duress,  245. 
property  acquired  by  means  of, 

216. 
reformed  for  mutual  mistake,  247. 
refusal  to  perform  void,  requires 

no  excuse,  237. 
return  or  tender  of  consideration 

condition  of  release  from,  236. 
right  to  make  and  enforce,  valu- 
able, 216. 
sales,  executory  and  executed,  251 . 
sales   of   land   must   contain   all 

essentials,  227. 
sales  not  ended  by  part  deliveries 

and  acceptances,  2G8. 
shipping,  means  of  limiting  car- 
rier s  liability,  325. 
signed  by  marks  good,  220. 
signed  by  one  party  only,  wheo 

good,  220. 


384 


Index 


Contracts,  Continued 

simple  receipts  no,  329. 

statute  of  frauds  does  not  apply 
to  all,  225. 

stock  insurance,  all  contained  in 
policies,  362. 

time  for  performing,  when  not 
named,  233. 

unread,  binding  if  fraud  did  not 
prevent  reading,  236. 

valuable  consideration  essential 
to  validity  of,  220. 

void  when  obtained  by  threaten- 
ing death,  245. 

voluntarily  signed  conclusively 
presumed  to  have  been  read 
understandingly,  236. 

wagering  and  gambling,  illegal 
and  void,  241. 

words  govern  punctuation  in,  222. 

writing  prevails  over  print  in 
case  of  repugnancy  in,  223. 

written,    may    be    composed    of 
several  papers,  226. 
Contractual,  relation  of  insurer  and 

insured  merely,  337. 
Control,  consignor's  right  to,  sales 

by  factors,  292. 
Controlling,  mistake  to  avoid  con- 
tract should  have  been,  247. 
Convenience,  public,  promoted  by 
the  police  power,  140. 

way  of  necessity  not  implied  for 
mere,  77. 
Conversion,  defined,  293. 

factor's  refusal  to  return  con- 
signed goods  a,  293. 

proved  by  demand  and  refusal, 
293. 
Converting    dogs,    actions    lie    for, 

208. 
Conveyance,  of  growing  fruit  should 
be  written  and  recorded,  173. 

of  water  appropriated  for  irriga- 
tion, 127. 
Conveyances,  see  Deeds. 


Conveying  land  revokes  license  to 

use  it,  81. 
Cooking,     natural     right     to     use 

riparian  water  for,  119. 
Co-operative  insurance,  see  Insur- 
ance. 
Corn,  growing,  classed  with  emble- 
ments, 174. 
hiding    musty,    under    sound,    a 

breach  of  warranty,  276. 
sold  from  crib  by  the  bushel  must 

be  measured,  255. 
stored  in  warehouse,  delivery  of, 

266. 
transfer  of  part  of  a  heap  of,  256. 
when     regarded     as     perishable 
freight,  332. 
Corncribs,  when  fixtures,  73. 
Corn-cutter,    implied    warranty   in 

sale  of,  272. 
Corn-fed,    representing    hogs    sold 

as,  a  warranty,  281. 
Corporations,  insurers  usually  are, 
335. 
irrigation   companies   are   public 

service,  135. 
irrigation  districts  are  public,  132. 
irrigation,  duty  of,  to  supply  con- 
sumers, 135. 
state     may     confine     insurance 
business  to,  360. 
Correct  deed,  effect  of  new  convey- 
ance made  to,  26. 
Correcting  policies  of  insurance,  339. 
Cotton,  growing,  classed  with  em- 
blements, 174. 
sold    unginned,    when    baling    is 
necessary,  255. 
Cotton  gin    and  cotton  press,  not 

fixtures,  72. 
Counted,   articles  sold  by  number 

must  be,  255. 
Counterfeit    butter,    state    legisla- 
tion against,  168. 
Course  of  trade,  factor  should  not 
sell  out  of  usual,  290. 


Index 


385 


Courses,  control  distances  in  bound- 
ary lines,  54. 
controlled     by     monuments     in 

boundary  lines,  54. 
open     to     buyer     when     express 
warranty  is  broken,  284. 
Court     of     Appeals,     New     York, 

opinion  on  stealing  dogs,  208. 
Courts,  powerless  to  change  insur- 
ance contracts,  338. 
refuse  to  enforce  illegal  contracts, 

239. 
unfavorable     toward     insurance 

warranties,  342. 
will  not  consider  wholesomeness 
of  milk  forbidden  by  law  to  be 
sold,  157. 
Covenants  in  deeds,  see  Deeds. 
to    give    good    titles    implied    in 

sales  of  land,  23. 
running  with  land,  32. 
Cow,     example     of    delivering,     in 
completing  sale,  265. 
vicious,      farmer's      liability      to 
milker  injured  by,  90. 
Cow  stables,  municipal  power  over 

location  of,  150. 
Cream  included  in  laws  regulating 

sales  of  milk,  161. 
Credit,   factor  may  deposit  collec- 
tions in  bank  to  his  own,  289. 
factor  may  sell  on,  289. 
given  to  pay  insurance  premiums, 
339. 
Creditors,     consignors'     rights    su- 
perior to  those  of  factor's,  298. 
Crime,  ground  for  discharging  farm 

laborer,  83. 
Criminal  actions  defined,  5. 

intent    no    element    in    violating 

pure  food  law,  165. 
law  against  disfiguring  domesti'! 
animals,  188. 
Criminals,  ordinary  predatory,  not 
classed   as   the   public   enemy, 
308. 


Criticized,   co-operative  fire  insur- 
ance officially,  366. 
Crops,  annual,  fruit  of  cultivation, 

called  emblements,  173. 
difference  between  manure  and, 

183. 
effect  of  severing,  from  the  soil, 

177. 
farmer     privileged     to     consume 

his,  8. 
growing,     belong    to    tenant    in 

common    in    sole    possession, 

173. 
growing,    belong    to    vendee    in 

possession,  173. 
growing,      generally      considered 

real  estate,  172. 
growing,   go  to  successful  party 

in  ejectment,  173. 
growing,  ownership  of,  when  lease 

expires,  179. 
growing,   pass  as  appurtenances 

when    not    reserved    in    deed, 

172. 
growing,    spontaneously,    always 

real  estate,  173. 
grown   on   shares,   ownership   of, 

91,  181. 
harvested     before     confirmation 

of  foreclosure  sale,  172. 
planted    after    location    of    rail- 
road, compensation  for,  179. 
raised    on    leased    farm    usually 

belong  to  tenant,  179. 
severed  from  soil  always  personal 

property,  177. 
tenant's     share     of,     subject     to 

execution,  182. 
two  classes  of,  173. 
ungarncred,  go  to   purchaser   on 

mortgage  foreclosure,  172. 
Cropper  without  interest  to  sell  or 

mortgage,  181. 
Croppers'  agreements,  90,  181. 
Crossing    boundary    line    trespass, 

53. 


2c 


386 


Index 


Cruelty,  to  animals,  188. 

to    animals,    dogs    protected    by 

laws  against,  206. 
farmer's,   justifies  farm  hand  in 

quitting,  85. 
Cultivation  a  mark  of  the  possession 

of  land,  38. 
Custom  and  usage  of  factors,  295. 
Customs,    popular,    foundation    of 

common  law,  2. 
Cyclones,  insurance  against,  346. 

Dairies,  municipal  power  over  loca- 
tion of,  150. 
Dairy    products,    laws    concerning 

preservatives  in,  166. 
Dam,  owner  of  the,  owns  her  off- 
spring, 202. 
riparian  owner's  right  to  build  a, 
102. 
Damaged,  factor's  liability  for  re- 
turning, goods  received  sound, 
293. 
Damages,  by  animals  to  roads,  stat- 
ute concerning,  194. 
carrier's  liability  for,  to  freight, 

303. 
cutting  off  riparian  access,  102. 
legal,  none  by  acting  on  opinions 

to  one's  injury,   244. 
liability   for,    none   for   carefully 

floating  logs,  98. 
liability   for,    of   irrigation   com- 
pany for  not  supplying  water, 
135. 
loss  or  destruction  of  crops,  178. 
master  liable  for,  when  servant 

adulterates  milk,   162. 
measure   of,    carrier's   failure   to 

deliver  freight,  318. 
measure   of,    destruction    of   full 

grown  trees,  178. 
measure  of,  purchase  of  diseased 

animals,  194. 
pollution   of   springs   and   wells, 
108. 


recoverable   for   breach   of   war- 
ranty after  use,  284. 
recoverable  from  carrier  not  fur- 
nishing cars,  312. 
recoverable  none  for  digging  well 
and  tapping  water  supply,  107. 
rule   of,   breach   of  warranty   in 

selling  seed,  275. 
without  wrong,  no  legal  remedy 
for,  5. 
Dangers    to    trespassing    animals, 

liability  for,  200. 
Dead    animals,    removal    of,    from 

public  streets,  152. 
Death,  by  drowning  in  farm  waters, 
liabUity  for,  110. 
fear  of,  duress  of  person,  245. 
revokes  license  relating  to  land, 
80. 
Debt,    oral   promise   to   pay   one's 
own,    outside    the    statute    of 
frauds,  226. 
Debts,  consigned  goods  not  subject 

to  factor's,  298. 
Decay,  carrier  no  insurer  of  goods 

that  naturally,  332. 
Deceitful  contract,  performance  of, 

never  decreed,  234. 
Decisions  of  courts  common  law,  2. 
Deed,  acceptance  of,  effect  of,  25. 
appurtenances  conveyed  not  cre- 
ated by,  66. 
breaches    of    covenants    against 

encumbrances,  32. 
breaches  of  covenants  in,  31. 
breaches  of  covenants  of  seisin, 

31. 
breaches    of    covenants    of   war- 
ranty, 31. 
certainty,  need  of,  in  describing 

the  land,  25. 
consideration  of,  may  be  proved 

orally,  26. 
containing  void   exception   good 

itself,  36. 
contents  of,  26. 


Index 


387 


Deed,  Continued 

conveyance  merely  not  the  con- 
tract of  sale,  15. 

correction  of,  by  new  conveyance, 
26. 

covenant     in,     against     encum- 
brances, 28. 

covenant    in,    against    grantor's 
acts,  29. 

covenant  in,  for  peaceable  pos- 
session, 28. 

covenant    in,    for    quiet    enjoy- 
ment, 28. 

covenant  in,  of  seisin,  30. 

covenant  in,  of  warranty,  27. 

delivery  of,  how  made,  16. 

delivery  of,  in  escrow,  17. 

devolution  of  title  by,  14. 

effect  of  delivering,    16. 

erasures    and    interlineations   in, 
25. 

exceptions  in,  34. 

exceptions  in,  void  for  uncer- 
tainty, 36. 

execution  of,  15. 

husband's  warranty  in  wife's,  33. 

implication  from  recording,  17. 

mistake  of  law  does  not  avoid, 
248. 

necessarily  a  written  instrument, 
15. 

popular  meaning  of,  15. 

presumption  from  the  possession 
of,  17. 

quit-claim,    function    and    effect 
of,  26. 
reservations  in,  34. 

revokes  prior  licenses  relating  to 
the  land,  81. 

tenements  and  hereditaments 
words  that  add  strength  to  a, 
27. 

title  to  farms  by,  23. 

undelivered,  no  validation  of  oral 
sale,  227. 

varieties  of,  26. 


Defective  organization  of  co-opera- 
tive   company   no    defense   to 

assessed   policy-holder,    364. 
purchase  of  land  never  decreed 

when  title  is,  236. 
Defects,   carrier's  duty  to  furnish 

cars  free  from,  313. 
carriers  not  liable  for  freight  lost 

through  inherent,  332. 
manufacturing,  implied  warranty 

of  farm  machinery  against,  283. 
potatoes    warranted    free    from 

latent,  when  sold  as  "  good," 

276. 
Deficit,    consignor    bound    to    pay 

factor   if   sales   do   not   cover 

advances,  297. 
co-operative      insurance,     made 

good  by  assessments,  363. 
large,     not    covered    by    words 

"more  or  less,"  50,  259. 
Definite,  oral  insurance  to  be  good 

must  be,  336. 
Definitions  : 
Accretion,  20. 
Act  of  God,  303. 
Adulterate,  161. 
Agister,  201. 
Alluvion,  21. 
Appurtenances,  65. 
Avulsion,  63. 
Cause  of  action,  5. 
Channel  of  stream,  95. 
Choscs-in-action,  217. 
Civil  actions,  5. 
Color  of  title,  41. 
Common  carrier,  301. 
Common  law,  3. 
Contracts,  216. 
Conversion,  293. 
Criminal  actions,  5. 
Disseisin,  40. 
Duress,  245. 
Easement,  66. 
Emblements,  174. 
Escrow,  17. 


388 


Index 


Definitions,  Continued 
Estate  in  fee  simple,  13. 
Estovers,  182. 
Estray,  189. 
Exception  in  deed,  34. 
Executory  contract,  217. 
Factorage,  296. 
Farm,  47. 
Fixture,  69. 
Floatable  stream,  97. 
F.o.b.,  267. 
Hard-fed  hogs,  281. 
Hereditaments,  27. 
Inch  of  water,  138. 
Insurance,  334. 
Irrigation,  112. 
Law,  1. 

Legal  remedy,  5. 
License,  79. 
Littoral,  99. 
Milk  (in  Statutes),  157. 
Monuments  (in  boundaries),  54. 
Nuisance,  150. 
Perishable  property,  332. 
Railroad  right  of  way,  73. 
Reliction,  21. 
Reservation  in  deed,  34. 
Right  of  way,  73. 
Riparian,  99. 
Stoppage  in  transitu,  267. 
Surface  waters,  102. 
Tenements  (in  deeds),  27. 
Water-course,  94. 
Way-going  crop,  179. 
Way  of  necessity,  76. 
Delaware,   farm  tenant's  right  in, 

to  "way-going  crop,"  179. 
statute  of,  requiring  registration 

of  dogs,  208. 
Delay,    carrier's,  followed  by  act  of 

God,  307. 
caused    by    insurance    company 

not  counted  in  time  limit  for 

bringing  suit,  358. 
unexcused,  to  give  notice  of  fire 

loss  forfeits  insurance,  355. 


unreasonable,  to  sue  for  specific 

performance  defeats  suit,  235. 

use  of  appropriated  water,  effect 

of  and  excuse  for,  119. 
violation  of  carrier's  duty,  316. 
Deliver     freight,     negligence     pre- 
sumed if  carrier  fails  to,  318, 
319. 
Delivered,   insurance  policy  is,    as 

soon  as  mailed,   338. 
Delivering    freight,     carrier's     ter- 
minal   facilities    for    receiving 
and,  315. 
policy,   insurance  contract  com- 
plete without,  336. 
Delivery,  of  deeds,  16. 

of  goods  completes  sale,  261. 

of  goods  to  common  carriers,  effect 

of,  in  sales,  266. 
of  goods,  sold  elements  in,  262. 
of    goods   sold  when   seller   may 

choose  time  for,  233. 
of  live-stock,  sale  and,  263. 
of  warehouse  receipts,  265. 
Demand  and  refusal  proof  of  con- 
version, 293. 
Denial,  total,  of  liability  to  pay  loss, 
dispenses   with    arbitration    in 
insurance,  357. 
Deposits,    bank's    liability  to   con- 
signors for  factor's,  298. 
Derivation    of    American    common 

law,  3. 
Descent,  title  to  land  by,  18. 
Description,  certainty  requisite  in, 
of  land  conveyed,  25. 
of   land,    rules    relating    to    the, 
54. 
Destruction,  of  milk  on  sale  below 
prescribed  standard,  160. 
summary,  of  unlawful  irrigation 

ditch,  not  allowed,  124. 
summary,    of    property    inimical 
to  public  welfare,  144. 
Determining,    rule   for,    when    title 
passes  by  sale  of  goods,  252. 


Index 


389 


Deviating  from  route  violates  car- 
rier's duty,  316. 

Devise,  title  to  land  by,  18. 

Dew,  heavy,  not  classed  as  act  of 
God,  305. 

Digging    well    and    tapping    water 
supply  no  legal  damage,  107. 

Different     status     of      crops      and 
manure,  183. 

Diluting  milk  with  water  adultera- 
tion, 161. 

Diminished,  riparian  stream  should 
not  be,  by  cutting  ice,  109. 
riparian  stream  should  not  be,  by 
irrigation,  113. 

Diminishing   flow    of   appropriated 
water,  injunction  against,  123. 

Dipping  sheep,  officer's  li,il:)ility  for 
using  injurious  bath  for,  147. 

Direct  proof  of  fraud  not  required, 
243. 

Disability,  farm  laborer  may  be  dis- 
charged for,  83. 

Discharge,  oral,  of  sealed  contract, 
abrogation  of  ancient  rule  for- 
bidding, 231. 
payment   to  factor   a,   of  buyer, 

289. 
right  of  laborer  to  wages  to  time 

of,  86. 
without  cause,  laborer's  right  to 
compensation  in  case  of,  86. 

Discharging  farm  laborer,  grounds 
for,''S3,  84. 

Disclose,  a  fraud  to  suppress  facts, 
it  is  a  duty  to,  244. 

Discretion,   courts  have,  to  decree 
specific  performance,  234. 

Discriminatory  police  laws  uncon- 
stitutional, 141. 

Diseased  and   diseases  of    animals, 
see  Animal.s. 

Disfiguring    animals,    criminal    law 
against,  applied,  188. 

Dislodge  possessor  of  land,  superior 
right  required  to,  38. 


Disobedience,  example  of  justifiablG 

by  factor,  297. 
Disposal  of  surface  water,  103. 
Disputed  division  lines,  settlement 

of,  57,  58. 
Disseisin,  begins  adverse  possession, 
40. 

distinct  from  dispossession,  40. 

wrongful  ouster  from    possession 
of  land,  40. 
Distances  yield  to  courses  in  bound- 
ary lines,  54. 
Distinct,  factor's  instructions  should 

be,  294. 
Distinction,  between  act  of  God  and 
unavoidable  accident,  304. 

between  adverse  possession  under 
and  without  color  of  title,  44. 

between    appurtenant    easements 
and  easements  in  gross,  68. 

between  continuous  and  discontin- 
uous easements,  68. 

between    co-operative  and    stock 
insurance  companies,  360. 

between     cropper     and     tenant, 
91. 

between    dispossession    and    dis- 
seisin, 40. 

between  dogs  and  other  animals 
before  the  law,  200. 

between    emblements  and    other 
products  of  land,  175. 

between  executory  and  executed 
sales,  251. 

between  express  and  implied  con- 
tracts, 218. 

between  factor  and  broker,  288. 

between  railroad  and  other  rights 
of  way,  73. 

between  representations  and  war- 
ranties in  insurance,  342. 

between  reservations  and  excep- 
tions in  conveyances,  34. 

between  sale  and  bailment,  251. 
Distillery  slops  unfit  food  for  milch 
kinc,  157. 


390 


Index 


District,    irrigation,    a   public   cor- 
poration, 132. 
Ditch,  abandoned  irrigation,  right 
to  re-make  and  use,  122. 

capacity    of,    limits   quantity   of 
water  usable  for  irrigation,  120. 

irrigation,     appropriated     spring 
appurtenant  to,  128. 

irrigation,  condemnation  of  right 
of  way  for,  130. 

irrigation,    exemption    of,    from 
taxation,  128. 

irrigation,  implied  grant  of  right 
of  way  for,  124. 

irrigation,  ownership  of,  on  pub- 
lic land,  127. 

irrigation,  persistent  neglect  to 
use,  an  abandonment,  123. 

irrigation,   right  to  change,    122. 

irrigation,  right  of  way  for,  124. 

irrigation,  use  of,  in  common,  121. 
Divert  and  carry,  means  used  to, 
water  to  irrigate,  immaterial, 
121. 
Diverting,  order  of,  water  to  irrigate 
determines  priority  of  right  to 
appropriated  water,  122. 

water  to  irrigate,  right  to  change 
place  of,  121. 

waters    of    riparian    stream    un- 
lawful, 100. 
Divided,  actions  in  law,  how,  5. 
Division,    crops   grown   on   shares, 
when  due,  181. 

fences,  56. 

fences,  duties  and  rights  respect- 
ing, 56,  57. 

fences,  liability  when  stock  es- 
cape through  and  suffer  injury, 
200. 

fences,  mistakes  in  locating,  50, 
57. 

fences,  out  of  place,  in  adverse 
possession,  45. 

indispensable  of  property  sold 
out  of  masses,  255. 


Docked  horses,   Colorado  registra- 
tion law  for,  187. 
Docks,  see  Wharves. 
Doctrine  of  Appropriation  of  water, 

115. 

Doctrine  of  sale  at  sound  price  being 

a  warranty  of  soundness,  273. 

Dog,    bad    reputation    of,    may    be 

proved  against  its  master,  211. 

duty    of    keeper    of    vicious,    to 

secure  it,  210. 
running  at  large,  when  and  when 

not,  212. 
unlawfully  killed  for  mere  tres- 
pass, 212. 
unmuzzled,  when  it  may  be  shot, 

145. 
who  may  be  charged  as  keeper  of 
a,  211. 
Dogs,  206. 

cats   and,    distinct   in   law   from 

other  animals,  209. 
collar,     name    on,     evidence    of 

ownership,  211. 
larceny  to  steal,  208. 
lawful,  when,  to  kUl,  211. 
legal  status  of,  206. 
liability  for  injuries  done  by,  210. 
property  in,  208. 
sheep-killing,  summary  slaughter 

of,  214. 
statutes  as  applied  to,  206. 
suits  for  injuring  and  conA'erting, 
208. 
Domestic  animals,  see  Animals. 
Domestic    household    servant,    no 
lien  of,   on  farm  products  for 
wages,  88. 
Dominant   tenement   one   with   an 

appurtenant  easement,  67. 
Doors  always  fixtures,  70. 
Double  sense  of  delivery  in  law  of 

sales,  261. 
Doubtful,   insurance    policies    con- 
strued only  when  meaning  is, 
340. 


Index 


391 


Drainage   conduit   a   water-course, 

94. 
Drinks  embraced  in  pure  food  laws, 

164. 
Drove,  sale  of  part  of  a,  how  de- 
livery is  made  in,  263. 
Drover's  pass   a   passenger  ticket, 

333. 
Drovers,    transportation   of,    along 

with  live-stock,  332. 
Drowning,   child  or  beast  in  farm 

waters,    liability   for,    110. 
Drunkenness,  ground  for  discharg- 
ing farm  hand,  84. 
when  it  avoids  contract,  220. 
Dry,   water-course  does  not   cease 

to  be  such,  by  running,  94. 
Dryness,  occasional,  of  stream,  does 

not  negative  navigability,  96. 
Dual    character   of   bill    of   lading, 

329. 
Dubious  language  of  contracts  elu- 
cidated by  intention,  221. 
Dumb  animals,  comprehensiveness 

of  term,  in  statutes,  184. 
Duress,    accepting   freely,    knowing 
the  facts,   less   than   claim,   in 
satisfaction  no,  247. 
contracts  procured  by,  245. 
fraud  where  constraint  replaces 

deceit,  245. 
is  either  of  person  or  of  goods, 

245. 
payments  compelled  by,  may  be 
recovered  back,  245. 
Duties  of  farm  laborer,  84. 
Duty,  a  foundation  of  implied  con- 
tracts, 218. 
of   agister  in   caring  for  beasts, 

201. 
of     avoiding     frightening     well- 
broken  horses,  197. 
of  carriers,  see  Carriers, 
of  factors,  see  Factors, 
of  farm  hand,  neglect  of,  ground 
to  discharge,  84. 


of  grantor  to  make  title  good,  23. 

of  keeper  of  vicious  dog  to  secure 
the  brute,  210. 

of  landowner  toward  trespassers, 
old  rule,  and  modern  mitiga- 
tion of  it,  199. 

of  owner  of  animals  at  common 
law  to  keep  them  at  home,  198. 

of  owner  of  animals  to  prevent 
injuries  by  them,  192. 

of  policy-holder,  see  Policy- 
holders. 

of  shipper,  see  Shippers. 

performance  of,  secured  by 
artifice  no  fraud,  243. 

silence  a  fraud  if  speech  is  a,  245. 

silence  no  fraud  unless  to  speak 
is  a,  244. 

to  stop  automobile  when  horse  is 
frightened,  197. 

willful  breach  of,  costs  factor  his 
commissions,  296. 

Earliest  recognition  of  seller's  right 

of  stoppage  in  transitu,  267. 
Earthquake,  fine  example  of  act  of 

God,  304. 
Easement,  defined,  66. 

every,  involves  two  distinct  tene- 
ments, 67. 

hidden  water-pipe  an  apparent, 
79. 

liberty  or  privilege  in  land  with- 
out profit,  66. 

of  necessity  in  water  piped  from 
spring,  79. 

public,  paramount  in  navigable 
stream,  95. 

right  to  have  surface  water  flow 
to  lower  land  a  natural,  103. 

a  servitude,  68. 
Easements,  66. 

always  estates  in  land,  67. 

appurtenances  to  one  and  bur- 
dens on  another  estate,  66. 

appurtenant  and  in  gross,  68. 


392 


Index 


Eis^ra^nts.  Continued 

consistent  with  general  property 

in  others,  67. 
eontiniioiis  and  discontinuous,  68. 
distinct    from    ownership    of   soil 

burdened,  63. 
do  not  pass  by  implication,  67. 
encumbrances  on  land,  29. 
grants  of,  should  bj  recorded,  68. 
incorporeal  hereditaments,  68. 
lost     when    intentionally    aban- 
doned, 69. 
rest  in  written  grants,  67. 
Effect,    buyers   accepting   property 

sold,  268. 
chattel     mortgage     on     title     to 

mortgaged  property,  203. 
deeds,  24. 
delivering     to     common     carrier 

goods  Slid,  266. 
deliv'oriiig  warehouse  receipts  for 

goods  sold,  265. 
discontinuing    extra     hazard     to 

insured  property,  349. 
encumbering    insured     property, 

353. 
given  to  plain  words  in  insurance 

policies,  341. 
giving    credit    to    pay   insurance 

premium,  339. 
leaving    insured    premises    unoc- 
cupied and  vacant,  350. 
performing  wholly  or  partly  oral 

contracts  witliin  the  statue  of 

frauds,  230. 
severing  crops  from  the  soil,  177. 
storing  tobacco  in  insured  barn, 

350. 
Ejectment,  does  not  lie  to  recover 

easement,  69. 
successful    party    in,   entitled    to 

growing  crops,  173. 
Elementary     principle     in     law     of 

sales  and  exchanges,  254. 
Elements,  in  adverse  possession,  43. 
indispensable,  in  contracts,  219. 


in  insurance  contracts,  335. 
in  sales  of  personal  property,  250. 
Elliott,    Mr.    Justice,    of   Colorado 

quoted,  131. 
Emblements,  173. 

always  personal  property,  174. 
belong  to  farm  tenant,   174. 
crops  designated  as,  174. 
defined,  174. 

transferable  like  chattels,  174. 
Emergency,      right      to      call     for 

laborer's  help  in  an,  85. 
Eminent  domain,  appropriation  of 
water  for  irrigation  by  power 
of,  129. 
Employer    and    employee    always 
master  and  servant  in  Ameri- 
can law,  82. 
Employment,  factor's,  purely  per- 
sonal, 291. 
for    indefinite    time    terminable 

any  time,  83,  85. 
now  always  rests  in  contract,  82. 
Encumbering      insured      property, 

effect  of,  353. 
Encumbrances,    covenant    in    deed 
against,  28. 
covenant  in  deed  against  breach 

of,  32. 
covenant  in  deed  against,  covers 

taxes,  29. 
insurance    conditions   respecting, 

353. 
validity  of  oral   promise  to  dis- 
charge, 226. 
Encyclopaedia    Britannica's    defini- 
tion of  irrigation,  112. 
End,    no   one   decreed    to   perform 
contract  which  he  has  power  to, 
235. 
Enemy,     public,     act    of,     excuses 

carrier,  303,  308. 
Enforce,  no  one  decreed  to  perform 
contract  which  he  could  not, 
235. 
Enforcement  of  contracts,  233. 


Index 


393 


England,  century-old  failure  in,  to 

settle  law  of  sales,  249. 
irrigation  in,  112. 
English    classification    of    servants 

not  followed  in  United  States, 

82. 
doctrine   of   agricultural   fixtures 

not  accepted  in  United  States, 

71. 
Enjoyment,     quiet,     covenant     in 

deed  for,  2S. 
Enticing  servant  from  employment, 

liability  for,  90. 
Entire    performance    of    oral    con- 
tract, effect  of,  230. 
Entireties,  contracts  construed  as, 

222. 
Entrance    fees    for    races,    agister's 

lien  does  not  include,  202. 
Environment  a  factor  in  interpret- 
ing contracts,  223. 
Epidemics,     typhoid    fever,     often 

traced  to  infected  milk,   156. 
Equal,  all  parts  of  every  contract, 

222. 
Equality     of     riparian     irrigation 

rights,  115. 
Equally,  carrier  bound  to  treat  all 

patrons,  302. 
Equity,  power  of  courts  of,  to  com- 
pel people  to  perform  contracts, 

234. 
Equivalents,    representations     and 

warranties    in    insurance    not, 

342. 
Erasures  in  deeds,  rule  concerning, 

25. 
Errors  of  insurance  agents,  343,  347. 
Escape,  of   frightened  horses   from 

highway  no  trespass,  199. 
the  law  enforces  forfeitures  only 

when  there  is  no,  341. 
Escapes,  agister's  duty  to  prevent, 

of  animals,  201.  ' 
Escaping,     cattle,     from    highway, 

pursuit  of,  no  trespass,  199. 


Escrow,  delivery'  of  deed  in.  17. 
Essence    of    insurance,     indemnity 

the,  3.34. 
Essentials,  of  contracts,  219. 

of  sales,  250. 
Estate,   in    fee    simple,   nature    of, 
13. 
in  land,  cropper  has  no,  91. 
in  land,  easement  always  an,  67. 
in  land,  license  does  not  create 

an,  80. 
privity  in,  32. 

right  of  way  an  inheritable,  74. 
Estates,    union    of    dominant    and 
servient,   extinguishes  way   of 
necessity,  78. 
Estovers,  182. 
Estray  defined,  189. 
Evaporation,   carrier  not  liable  for 

liquids  lost  by,  320. 
Events  insured  against  always  un- 
certain in  time,  334. 
Eviction,  31. 

Evidence,  available  to  prove  fraud, 
243. 
insurance  premium  receipt,  337. 
possession  of  land,  39. 
Excavations     dangerous     to     tres- 
passing animals,  200. 
Exception  in  deed  defined,  34. 
Exceptions,    qualifying    strict    lia- 
bility of  carriers,  319. 
and  reservations  in  deeds,  34,  35. 
oral,   in  sales  of  land,  generally 

invalid,  35. 
to  rules  of  law,  see  Rules,  legal, 

exceptions  to. 
uncertain,  in  deeds  void,  3G. 
Excess,  large,  not  covered  by  phrase 

"more  or  less,"  50,  259. 
Excessive    charges   of   carrier   nui.\' 

be  recovered  back,  302. 
Exchanges  of  property,  elementary 

principle  applying  to,  254. 
Exclusive  license  to  collect  garbage 
valid,  153. 


394 


Index 


Excusable    trespass    for    cattle    to 

browse  on  open  land,  198. 
Excuses,  for    not   performing    con- 
tracts, 237. 
ignorance  of  law  of  another  state, 

248. 
irrigation  company's,  for  not  sup- 
plying water,  135. 
misfortune  and  accident  no,  for 
not  performing  contracts,  238. 
unnecessary  for  not   performing 
void  contracts,  237. 
Executed  contract  of  sale  a  com- 
pleted sale,  251. 
Executing,  merely,  a  deed  no  vali- 
dation of  oral  sale  of  land,  227. 
Execution,  creditor   of  factor   sub- 
ordinate to  consignor,  298. 
cropper's  share  of  crops  subject 

to  levy  on,  182. 
of  deeds,  15. 

exemptions  from,  see  Exemptions. 

Executory    contracts,    defined,    21. 

executed  and,  contracts  of   sale, 

251. 
sale  an  agreement  to  sell,  251. 
sale   does   not   cancel   insurance, 

352. 
sale  of  live-stock,  example  of,  26. 
Exemptions,    carriers',  in     bills    of 
lading  strictly  construed,  330. 
carriers',  in  drovers'  passes  void, 

333. 
carriers',    from    losses    by  mobs 

and  strikes  valid,  326. 
from       execution       of      animals 

liberally  inclusive,  184. 
from  execution  of  farmers,  10. 
from     execution     of     homestead 

covers  growing  crops,  177. 
from  execution  of  homesteads  lost 

by  severed  crops,  177. 
of     farmers     from     involuntary 

bankruptcy,  8,  9. 
of  farmers  from  local  taxes  and 
licenses,  11. 


of  irrigation  ditches  from  taxa- 
tion, 128. 
Exhaust  riparian  water,  when  it  is 

permissible  to,  119. 
Existence  and  recognition  of  bound- 
aries, 53. 
of   subject    of   contract,    mutual 
mistake  about,  fatal,  247. 
Expenses,  factor's  lien  for  his,  296. 
Explanation,  receipts  open  to  oral, 

329. 
Express  company,  carrier  no  right 
to  give  exclusive  privileges  to, 
302. 
contracts  agreements  in  definite 

language,  217. 
implied  and,  warranties  in  sales, 

271. 
warranty  may  always  be  insisted 

upon  in  sales,  284. 
warranty     survives     acceptance 
and  use,  284. 
Extension    of    credit,     factor    not 
authorized  to  grant  an,  289. 
of  farm,  48. 

renewal    of    insurance,   a    mere, 
343. 
Extent  of  arid  region  in  the  United 

States,  115. 
Extravagant  opinion,  no  fraud  to 

express  an,  244. 
Extrinsic    fact,    ignorance    of,    will 
not  avoid  contract,  247. 

Facilities,     carriers'     terminal,     to 
receive  and  deliver  freight,  315. 

Fact,    misrepresented,    to    avoid    a 
contract  must  have  been  ma- 
terial, 244. 
fraud  to  suppress,  which  should 

be  disclosed,  244. 
money    paid    under    a    mistake 
of,    may    be   recovered    back, 
247. 

Factorage,   legal   term   for  factor's 
commissions,  296. 


Index 


395 


Factor's    acts,    statutes    called,    in 

many  states,  299. 
agency  a  personal  one,  291. 
commission  merchants  known  in 

law  as,  287. 
commissions  lost  by  willful  breach 

of  duty,  296. 
compensation  and  lien,  296. 
custom  and  usage,  295. 
distinction  between  bailees  and, 

288. 
distinction  between  brokers  and, 

288. 
doing  their  best  may  sell  below 

market,  293. 
duties  of,  291. 

liability  of,  to  consignors,  293. 
lien,  none  on  property  obtained 

by  bad  faith,  296. 
limitations  of,  authority,  290. 
may  disobey  orders  contravening 

contracts,  292. 
modification     of     common     law 

against  pledges  by,  290. 
powers  of,  288. 
refusal   of,    to   return    consigned 

property  conversion,  293. 
right  to  be  re-imbursed  advances, 

296. 
sales  to  themselves,  294. 
selling   out    of   usual     course   of 

trade,  290. 
stealing  by,  294. 
Factory  waste,  riparian  owner  should 

not  cast,  into  stream,  101. 
Failure  to  deliver    freight    presup- 
poses carriers'  negligence,  318, 

319. 
Fair   sale   not   annulled    for   inad- 
equacy of  price,  237. 
Fall  deliveries,  when  due  on  sale  of 

fruit  trees,  234. 
False  answers  in  applications  vitiate 

insurance,  341. 
packing  to  conceal  musty  corn  a 

breach  of  warranty,  276. 


representations  of  material  facts 
vitiate  contracts,  243. 

weights     and     measures,     penal 
statutes  against  using,  162. 
Falsehood,  fraudulent  concealment 
equivalent  to  spoken,  244. 

without  damage   not   cognizable 
at  law,  243. 
Farcy,  contagious  disease  in  horses, 

142. 
Farm,  ambiguity  of  the  word,  47. 

boundaries,  53. 

boundaries  on  highways,  streams, 
seas,  and  lakes,  48,  49. 

buying  a,  23. 

extent,  area,  and  components  of 
a,  47. 

farmer  in  possession  of  the,  37. 

fixtures,  American  doctrine  con- 
cerning, 71. 

kitchen  garden  not  a,  10.  • 

modes  of  acquiring  a,  13. 

need  not  be  riparian  to  be  irri- 
gable, 125. 

title  to,  by  deed,  23. 

waters,  92. 

workers,  82. 
Farmers,  advice  to,  selling  diseased 
animals,  278. 

advice  to,  selling  parts  of  masses 
of  produce,  258. 

application  to,  of  municipal  huck- 
stering ordinances,  154. 

application  to,  of  national  bank- 
rupt act,  8,  9. 

before  the  law,  7. 

exemptions    of,    from    execution, 
10. 

exemptions  of,  from  license  taxes, 
11. 

incidents  to  the  vocation  of,  7. 

legal  relations  of,  to  farm  workers, 
82. 

liability  of,  for  acts  of  servants,  89. 

relations    of,     with     neighboring 
towns,  149. 


396 


Index 


Farming,  agreements  for,  on  shares, 
90,  181. 
raising  vegetables  on  acre  lot  not, 

10. 
warranties  in  sales  of  implements 
and  machinery  for,  283,  284. 
Farnham  (Henry  Philip),  work  on 
Waters     and     Water     Rights, 
cited,  119,  120,  1.32,  i::!.3. 
Fat,     law    requiring     twenty     per 
centum  in  cream  on  sale  valid, 
161. 
Fault,  contracts  void  that  exempt 
carriers  from   consequences   of 
their  own,  328. 
shipper's,    carrier   not   liable   for 
loss  by,  320. 
Favor,  decreeing  specific  perform- 
ance of  contracts  a,  234. 
Fear    of    death    or    bodily    injury 

duress  of  person,  245. 
Fee  simple,  nature  of  an  estate  in, 

13. 
Fences,  across  unna\-igable  streams, 
95. 
agister's  duty  in  respect  of,  201. 
along  a  right  of  way,  75. 
covenant  to  build,  along  a  rail- 
road runs  with  land,  32. 
defective,    no   liability  when   dis- 
eased     stock      pass     through, 
194. 
division,    rights    and    duties    re- 
specting, 56,  57. 
land  includes  the,  upon  it,  50. 
liability      when      stock      escape 

through  and  are  injured,  200. 
line,    misplacing    of,    in    adverse 

possession,  45. 
loo.se    wires    of,    and    trespassing 

cattle,  56. 
necessary  qualities  of,  55. 
Fermentation,     carrier     not     Halle 

when  casks  burst  from,  320.- 
Ferocious  watch   dog,   owner's  lia- 
bility for  injuries  by,  210. 


Ferry     on     na\'igable     stream     an 
exclusive      government      fran- 
chise, 95. 
Fire,  accidental,  not  an  act  of  God, 
306. 
caused  by  negligence  covered  by 

insurance,  345. 
exemption    in    bill    of   lading   of 
carrier  from  loss  by,  valid,  330. 
insurance,  see  Insurance, 
loss  of  transported  animals  by, 
carrier's  liability  for,  322. 
Fixture  defined,  69. 
Fixtures,    American    doctrine    con- 
cerning farm,  71. 
intent  in  annexing  an  important 

factor,  70. 
physical  annexation  to  land  a  test 

of,  69. 
relaxation  of  strict  ancient  rules 

respecting,  71. 
trade,  71. 
Flavoring,   adding,  adulteration  of 

food,  165. 
Flax-seed,     probably     covered     by 

insurance  of  grain,  346. 
Fleeces,  ownership  of,  before  sheep 

sold  are  taken  away,  264. 
Floatable  streams,  97. 
Flock,  sale  of  part  of,  delivery  how 

made,  263. 
Flood,  example  of  act  of  God,  305. 
Flumes,    exemption    of    irrigation, 

from  separate  taxation,  128. 
F.o.b.,  meaning  of,  in  sales  of  goods 
to  be  delivered  at  a  distance, 
267. 
Fodder,  sold  out  of  stock,  necessity 

of  setting  apart,  255. 
Food,    animals',    warranty    of,    in 
sales,  278. 
and  drink,  all  articles  of  human, 
embraced    in   pure   food    laws, 
164. 
furnished  farm  laborer  should  be 
sound  and  wholesome,  85. 


Index 


397 


Food,  Cnnlinurd 

human,   warranty  of,  when  sold, 

277. 
laws,  legislature  power  to  enact, 

165. 
muuieipal  regulation  of  sales  of, 

154. 
operations  to  hide  inferiority  of, 

peual  laws  again.st,  165. 
packages,     laws     requiring     the 

marking  of,  168. 
perishable,    sale    of    wholesome, 

may  not  be  forbidden,  154. 
preparing,  supreme  right  to  use 

riparian  water  in,  119. 
pure,  state  legislation  about,  167. 
sophistication  of,  power  of  state 

to  penalize,  164. 
wholesome,    state    powerless    to 
forbid  sales  of,  under  its  own 
name,  165. 
Foolish,      merely,      contracts     not 

annulled,  2.36. 
Foreign  law,  ignorance  of,  an  ex- 
cuse, 248. 
Foreman,  when  a  farm  laborer,  88. 
Foreseen,  act  of  God  never,  303. 
Forfeitures,  insurance,  waived  by  ac- 
cepting overdue  premium,  356. 
not  favored  in  law,  341,  357. 
of  leases,   forfeit  growing  crops, 

179. 
once  waived  are  waived  forever, 
357. 
Forged   signature   to   deed   proved 

orally,  26. 
Formal  language  unnecessary  for  a 

warranty,  271. 
Formality     unnecessary     to     legal 

delivery  of  goods  sold,  262. 
Forms,     sticking    to    legal,     never 

purges  fraud,  243. 
Fowls,   protected  by  penal  statute 
against  poisoning  animals,  189. 
Fragile    freight,    carrier   may   limit 
liability  for,  331, 


Fraud,  affirming  as  truth  what  one 
is  ignorant  of,  a,  244. 

concealing  facts  which  should  be 
disclosed,  a,  244. 

contracts  secured  by,  always  re- 
lieved against,  242. 

duress  a  kind  of,  where  constraint 
replaces  deceit,  245. 

enforcement  of  oral  contracts 
decreed  to  prevent,  231. 

expressing  an  extravagant  opin- 
ion no,  244. 

never  presumed,  243. 

not  eliminated  by  adhering  to 
legal  forms,  243. 

nullifies  every  contract,  243. 

securing  by  craft  performance  of 
legal  duty  no,  243. 

selling  food,  legislation  to  sup- 
press, in,  167. 

selling  provisions,  power  of  state 
to  interdict,  in,  164. 

specific  performance  of  contract 
tainted  with,  never  decreed, 
234. 

vitiates  every  transaction,  242. 

without   damage  not   cognizable 
at  law,  243. 
Frauds,  statute  of,  224. 

affects  contracts  for  farm  labor, 
82. 

affects  contracts  not  perform- 
able  in  a  year,  224. 

affects  promises  to  answer  for 
another,  224. 

affects  sales  of  goods  worth  fifty 
dollars,  225. 

affects  sales  of  land  and  landed 
interests,  224. 

date  of  first  enactment  of,  224. 

does  not  afifect  all  contracts,  225. 

generally  enacted  in  United 
States,  225. 

important  provisions  of,  224. 

inoperative  on  executed  coo- 
tracts,  230 


398 


Index 


Frauds,  Continued 

makes    contracts    unenforceable 

not  void,  226. 
numerous  English  and  American 

decisions  on,  225. 
popular  name  for  act  to  prevent 

frauds  and  perjuries,  224. 
subject  of  many  learned  treatises, 
225. 
Free  action  requisite  to  valid  con- 
tract, 219. 
investigation    nullifies    misrepre- 
sentation, 244. 
Freedom  of  contract  a  constitutional 

right,  216. 
Freely  accepting  in  full,  knowing  the 
facts,  less    than    a    claim,  no 
duress,  247. 
Freight,  see  Carriers. 
Freight    not    included   in    agister's 

lien,  202. 
Fresh  water  lakes,  ownership  of,  63. 
Freshet,  example  of  act  of  God,  305. 
loss  by,  when  not  insured  against, 

346. 
overflow   of   stream   by,    surface 
water,  103. 
Friendly    law    suits    viewed    with 

favor,  5. 
Fright  in  horses,  197. 
Frightened    horses    escaping    from 

highway  no  trespassers,  199. 
Fruit,  borne  on  branches  overhang- 
ing boundary,  59. 
carrier's  liability  for  refusing  to 

transport,  311. 
carrier's    lial)ility    for    unloading 

in  zero  weather,  306. 
example  of,  consigned  for  .sale, 297. 
frozen    while    carried   in   unsuit- 
able cars,  313. 
growing,  conveyance  of,  should  be 

written  and  recorded,  173. 
perishable,  buyer's  recourse  after 

payment  on  warranty,  277. 
perishable  freight,  332. 


trees,  example  of  implied  war- 
ranty in  sale  of,  274. 

trees,  frost  bitten  in  transit, 
carrier's  liability  for,  307. 

trees,  sold  for  fall  delivery,  when 
deliverable,  234. 

ungrown,  sale  of,  warrants  it 
sound  and  merchantable,  276. 

Gale,  sudden  and  extraordinary, 
act  of  God,  306. 

Gambling  contracts  illegal  and 
void,  241. 

Garbage,  municipal  regulations  con- 
cerning, 152. 
validity   of   exclusive   license   to 
collect,  153. 

Gardener,  classified  as  a  farmer,  7. 

Gas,  natural,  underneath  farm, 
ownership  of,  51. 

Gates  across  ends  of  rights  of  way, 
75. 

Geldings,  exempt  as  horses  from 
execution,  185. 

Georgia,  chattel  mortgage  lien  on 
progeny  of  mortgaged  live- 
stock in,  203. 

Germ-laden  milk,  factor  in  infant 
mortality,  156. 

Gibbon's  Roman  Empire  quoted,  2. 

Gin-stand,  unattached,  no  fixture, 
72. 

Glanders,     contagious     disease     in 
horses,  142. 
horses  suffering  from,  when  law- 
fully killed,  145. 

Good  faith,  utmost,  demanded  of 
factor,  291. 

Good  title,  covenant  implied  in 
selling  land  to  give,  23. 

Goods,  duress  is  either  of  person  or 
of,  245. 
sent  factor,   con.signor's  title  to, 

298. 
sold,  appropriation  indispensable 
of  specific,  255. 


Index 


399 


Goods,  Continued 

sold,  effect  of  buyer's  accepting, 

268. 
sold,  features  in  delivering,  261. 
sold,    measuring,    counting    and 

■weighing,  255. 
sold,  right  of  stopping,  in  tran- 
situ, 267. 
Government,  control  of  commission 
business,  299. 
control  of  insurance  business,  360. 
control  of  irrigation,  131. 
jurisdiction  over  waters,  102. 
Grace,  compelling  specific  perform- 
ance of  contracts  acts  of,  234. 
Grain,    fruit   and   vegetables,   war- 
ranties in  selling,  276. 
insurance  on,  in  stacks,  347. 
insurance  on,  what  is  covered  by, 

346. 
status  of  unreaped  as  personal  or 

real  property,  174. 
stored  in  warehouse  delivered  by 
transfer  of  receipt,  265. 
Grains,    brewers',     unfit    food     for 

milch  cows,  157. 
Grant,  implied  of  way  of  necessity, 
77. 
of  land,  how  shown,  14. 
right  of  way,  rests  in,  74. 
title  by,  14. 

written,   requisite   for  easement, 
67. 
Grantor's   acts,    covenant   in   deed 
against,  29. 
duty  to  make  title  good,  23. 
Grapevines  sold   for   fall   delivery, 

when  deliverable,  234. 
Grasses  growing  wild,  land  includes, 
50. 
sale  of,  must  be  in  writing,  227. 
Gratuitous  promises  unenforceable, 

220. 
Gristmill,  portable,  not  a  fixture,  72. 
Grocer,  potatoes  sold  to,  warranted 
sound,  276. 


Growing  crops,  see  Crops. 
fruit,  see  Fruit, 
grasses,  see  Grasses, 
timber,  see  Trees. 
Guaranty,  oral,  of  transferred  note 

valid,  226. 
Guilty    knowledge    no    element    in 

violating  pure  food  law,  165. 
Gullies  not  water-courses,  94. 
Gully  usable  for  irrigation  ditch,  121. 
Gust  of  wind  not  classed  as  an  act 
of  God,  306. 

Habit,    dog's,    of   attacking   teams 

proveable  against  its   master, 

211. 
Habits  of  animals,  how  proved,  193. 
Hail,    loss    by,    when    not    insured 

against,  346. 
Hale's,  Lord,  De  juris  maris,  cited, 

93. 
Harborer    of    dog,    who    may    be 

charged  as,  211. 
Hard-fed,    meaning   of,    in   sale    of 

hogs,  281. 
Harvester,     example     of     implied 

warranty  in  sale  of,  272. 
example  of  right  of  purchaser  to 

return,  284. 
when  not  covered  by  insurance, 

348. 
Hay,  cured,  not  perishable  freight, 

3.32. 
sold  by  ton  from  stacks,  necessity 

of  weighing,  255. 
spoiled  by  white  lead,  seller  of, 

liable  for  stock  injured  by,  279. 
Hay  press,    when    not    covered    by 

insurance,  348. 
Hayt,   Chief  Justice,   of  Colorado, 

quoted,  126,  131. 
Hazard,  insurance  forfeited  by  in- 
crease of,  348. 
Head-gate,  use  of,  in  common  for 

irrigation,  121. 
Health,  board  of,  see  also  Officers. 


400 


Index 


Health,  Continued 

boards    of,    lawfully    empowered 

to  license  milkmon,  158. 
boards     of,     orders     of,     excuse 
carriers  from  delivering  freight, 
318. 
boards  of,  private  suits  do  not  lie 

against,  146. 
boards    of,     public    bodies    cor- 
porate, 146. 
certificate   lawfully   required   for 

imported  live-stock,  142. 
guarded  by  the  police  power,  139. 
public,  animal  registration  in  the 
interest  of,  186. 
Heavy    articles    sold,    delivery    of, 

262. 
Heifer  exempt  as  milch  cow  from 

execution,  184. 
Herd,  sale  of  part  of,  delivery  how 

made,  263. 
Hereditament,    appurtenant    ease- 
ment an  incorporeal,  68. 
right  to  have  water  flow  from  or 
to    another's    land    an    incor- 
poreal, 103. 
right  of  way  an  incorporeal,  73. 
riparian  right  to  water  for  irriga- 
tion, an,  126. 
word,  use  of  the,  in  deeds,  27. 
Hidden    water-pipe     an     apparent 

easement,  79. 
Highest  price  procurable,   duty  of 

factor  to  get,  291. 
High-water     mark,    boundary     on 

sea,  lakes,  and  rivers,  49,  62. 
Highway,  animals  in,  see  Animals, 
as  a  boundary,  48,  60. 
collision  when  driving  on  wrong 

side  of,  197. 
ownership    of   trees   growing   in, 
61. 
Hitching  places  for  horses  in  munic- 
ipalities, designating,  151. 
Hogs,  all  species  of,  living  and  dead, 
embraced  in  statutes  as,  184. 


carriers'     duty     to     shower,     it 

transit,  321. 
killing,  rooting  near  river  levees, 

lawful,  145. 
warranted    when    sold    as    hard- 
fed,  281. 
Hog-pens,    municipal    power    over 

location  of,  151. 
Holiday,  carrier  not  bound  to  move 

freight  on  a,  316. 
Homestead,  exemption  of,  exempts 

unharvested  crop,  177. 
Honest    work    required     of    farm 

laborer,  84. 
Honesty  absolves  factor,  293. 

legal  presumption  in  favor  of,  243. 
Hops,    growing,    classed   with   em- 
blements, 174. 
Horse,  shaving   mane  and    tail  of, 
punished  as  malicious  disfigure- 
ment, 188. 
single,  wagon  and  harness,  exempt 
as    a    team    from    execution, 
185. 
Horses,    carriage,    not    exempt    as 
work    horses    from    execution, 
185. 
docked,      Colorado     registration 

law  concerning,  187. 
examples  of  warranties  in  selling, 

280,  281. 
exempt    as    beasts    of    the    plow 

from  execution,  184. 
frightened,    escaping   from   high- 
way no  trespassers,  199. 
insured  in  barns,  347. 
left    temporarily    standing    not 

estrays,  190. 
municipal    power    to    designate 

hitching  places  for,  151. 
suffering  from  glanders  lawfully 
killed,  145. 
Horticulturist  classed  as  a  farmer, 

7. 
Hostility  to   true  title   in   adverse 
possession,  43, 


Index 


401 


Hound    in    chase    not    running    at 

large,  212. 
Hounds     running     through     grain- 
field,  when  lawfully  shot,  213. 
Hours,    farm    hand    not    bound    to 

work  daily  unduly  long,  85. 
Household  use  of  riparian  water  a 

supreme  natural  right,    119. 
Huckstering,  154. 
Human  agency  without  part  in  act 

of  God,  303. 
food,  warranties  in  sales  of,  277. 
Humane  societies,  constitutionality 

of  laws  authorizing  the  killing 

of  animals  by,  147. 
Husband's  warranty  in  wife's  deed, 

33. 

Ice,    appropriation    of,    in    public 

waters,  109. 
carrier's  duty  to  keep  refrigerator 

cars  supplied  with,  323. 
carrier's  fault  in  not  furnishing, 

313. 
carrier's   rule    about    adding,    to 

refrigerator  cars,  324. 
included  in  farm  waters,  92. 
natural,  personal  property,  109. 
on    private    waters    belongs    to 

tenant,  109. 
on  public  waters  common  prop- 
erty, 109. 
restrictions  on  right  to  harvest, 

109. 
riparian     right     to     take,     from 

private  stream,  109. 
riparian  right  to  take,  from  pub- 
lic waters   not   exclusive,    109. 
Identifying  marks  on  food  packages, 

laws    requiring,     168. 
subject     sold     indispensable     to 

sale,  251. 
Identity,    mutual    mistake    of,    of 

subject  of  contract  fatal,  247. 
of  names  and  persons  in  chains  of 

title,  15. 

2d 


Ignorance  of  extrinsic  fact  will  not 
avoid  contract,  247. 
of  law,  why  no  excuse  for  its  viola- 
tion, 1. 
of  quantity  held  no  excuse  for  sell- 
ing milk  in  unmarked  bottles, 
163. 
Ignorant    acceptance    of    overdue 
insurance   premium    after   loss 
ineffective,  344. 
fraud  to  affirm  as  true  that  of 
which  one   is,   244. 
Illegal  contracts,  239. 

presumption  against  purpose  to 

make,  222. 
no  legal  remedy  for  what  is  itself, 
4. 
Illinois,  factor's  act  in,  299. 

law    of,    act    of    God    following 

carrier's  delay,  307. 
unreaped     grain     classed     with 
emblements    in,    174. 
Illness,      permanent,     ground     for 

discharging  laborer,  83. 
Imitation  butter,  legislation  against, 

168. 
Immorality    with    other    servants 
justifies  discharging  laborer,  83. 
Immunities,  rights  and,  of  carriers, 

325. 
Impartially,  carrier  bound  to  treat 

all  patrons,  302. 
Imperceptible     growth     character- 
istic of  accretion  and  reliction, 
21. 
Implements,     farming,     warranties 

in  sales  of,  283,  284. 

Implication  from  recording  deed,  17. 

Implied    agreement    by    consignor 

to  repay  factor's  advances,  296. 

contracts    a    class    iu    litigation, 

217. 
contracts  dictated  by  reason  and 

justice,  218. 
contracts    ;.romis(-s    legally    pre- 
sumed, 218. 


402 


Index 


Implied,  Continued 

covenant   to   give   good   title   in 

selling  land,  23. 
delivery  of  goods  sold,  262. 
easement   of   necessity  in  water- 
pipe  from  spring,  79. 
grant  of  way  of  necessity,  77. 
license  to  go  on  land  to  get  pur- 
chased property,  81. 
warranties    in    selling    food    for 

man  and  beasts,  278. 
warranties  in  selling  goods  and 
chattels,  271. 
Importing    diseased    animal,     car- 
rier's  liability   for,    to    buyer, 
195. 
Impossible  performance  of  contract, 

237,  238. 
Impounding  animals,  see  Animals. 
Imprisonment  duress  of  person,  24.5. 
Improvement,  farm,  water  appro- 
priated for  irrigation  an,  127. 
of  land  a  mark  of  possession,  38. 
of  land,  mechanics'  liens  for,  88. 
well   an,   within  mechanics'   lien 
laws,  88. 
Inadequate  consideration  no  ground 

to  avoid  contract,  237. 
Inalienable,  right  of  contract,  216. 
Inch  of  water,  attempts  at  defining, 

138. 
Incidental  mistake  will  not  avoid 

contract,  247. 
Incidents    to    enjoying    land,    ap- 
purtenances, 65. 
Inclement  weather  not  classed  as 

act  of  God,  305. 
Incomplete   contract,    performance 

of,  never  decreed,  235. 
Incorporeal,  see  Hereditament. 
Indefinite  contract,  performance  of, 
never  decreed,  235. 
term  of  employment  terminable 
any  time,  83,  85. 
Indemnity,  insurance  a  contract  of, 
334. 


Indiana,  doctrine  in,  respecting  sale 
at  a  sound  price  being  a  war- 
ranty of  soundness,  273. 
implied  warranty  in,   of  animal 
sold  for  breeding,  282. 
Indians,  band  of  marauding,  public 

enemies,  308. 
Indicia    of    adverse    possession    of 
land,  43. 
general,  of  possession  of  land,  38. 
Indispensable  elements  in  contracts, 

219. 
Industrious,  factor's  duty  to  be,  291. 

farm  laborer's  duty  to  be,  84. 
Inequitable   contract,   performance 

of,   never  decreed,  234. 
Infected     live-stock,     carrier     not 
bound  to  transport,  311. 
stock   cars,    carrier   negligent   in 
using,  322. 
Infection,   agister's  duty  to  guard 
animals  from,  201. 
police     laws     directed      against 
spread  of,  142. 
Influence,  to  avoid  a  contract  mis- 
take must  have  had  a  control- 
ling, 247. 
Information,   one  must  have   used 
all  his  sources  of,  to  avoid  a 
contract  for  mistake,  247. 
Injunction,  against  clogging  irriga- 
tion ditch,  123. 
against    poisoning    appropriated 
water,  124. 
Injuries,  by  dogs,  liability  for,  210. 
farm  hand's  negligence,  farmer's 
liability  for,  to  third  persons,  90. 
to  trespassing  animals,   199. 
unpreventable,  by  domestic  ani- 
mals entail  no  liability,  193. 
Injuring  dog,  action  lies  for,  208. 
farmer's  business  ground  for  cas- 
charging  farm  laborer,  83. 
Injury,  fear  of  bodily,  duress,  245 
from  accepting  opinion  not  \vital 
damage,  244. 


Index 


403 


Inheritable  estate,  right  of  way  an, 

74. 
Inhumanity,  farmer's,  justifies  quit- 
ting his  service,  85. 
Inlet  of  the  sea,  farm  waters  include, 
92. 
no  water-course,  94. 
Innocence,     legal    presumption    in 

favor  of,  243. 
Innocent  sales  of  diseased  animals, 

278. 
Insanity,  locomotive  engineer's,  not 

classed  as  act  of  God,  306. 
Insolence,    ground   for   discharging 

farm  laborer,  84. 
Insolvency,   factor's,   does  not  end 
his  authority  to  bank  collec- 
tions, 289. 
Inspection,  accepting  goods  bought 
after  opportunity  for,  268. 
factor's    accounts    open    to    con- 
signor's, 291. 
laws,  quarantine  and,  141. 
live-stock,  laws,  142. 
Insurable  interest  in  insured  prop- 
erty, 351. 
Insurance,  accepting  overdue  pre- 
mium waives  forfeiture  of,  356. 
additional  without  underwriter's 

consent,  353. 
against    fire    and    other    losses, 

334. 
agent,  knowledge  of,  imputed  to 

company,  343. 
agent,    power   of,    limited   as   to 

vacant  premises,  351. 
agent,   promise  of,   to  renew  in- 
surance, 344. 
agreements    to    transport    goods 

contracts  of,  318. 
animals  against  lightning,  345. 
arbitration  useless  if  all  liability 

is  denied,  357. 
assessment,   fire,    359. 
avoided  for  misrepresentation  of 
insured's  interest,   352. 


avoiding,  for  untruthfulness  rea- 
sonable, 341. 

binding  slip  a  temporary  contract 
of,  337. 

cancelling  policy  of,   344. 

ceases  with  cessation  of  insurable 
interest,  352. 

common  features  in  all,  359. 

company,   right  of,   to   contract 
like  an  individual,  337. 

completing  contracts  of,  336. 

conditions     respecting     encum- 
brances, 353. 

conditions  respecting   ownership 
and  other  insurance,  353. 

consideration     of     contract     of, 
called  premium,  334. 

contracts  called  policies,  335. 

contracts,    courts    powerless    to 
change,  338. 

contracts,  elements  of,  335. 

continues    until    unearned    pre- 
mium is  returned,  345. 

co-operative,   distinguished  from 
other  insurance,  360. 

co-operative,  features  of,  359, 360. 

co-operative,  fire,  359. 

co-operative,     not    cancelled    by 
mere    withdrawal,    365. 

co-operative,  official  criticism  of, 
366. 

co-operative,    policy-holders     as- 
sessable in,  363. 

defined,  334. 

does  not  follow  property  to  new 
owner,  352. 

effect  on,   of  storing  tobacco  in 
barn,  350. 

examples    of,    losses    after    extra 
hazard  ceased,  349. 

fire  caused  by  negligence  covered 
usually  by,  345. 

fire  kindled  by  public  officers  not 
covered  by,  346. 

fire  loss  covered  by  policy  on  the 
way  through  the  mails,  339. 


404 


Index 


Insurance,  Continued 

fire,  renewal  of,  343. 

fire,  started  by  lightning,  345. 

forfeited  by  unreasonably  delay- 
ing notice  of  loss,  355. 

grain,  what  is  covered  by,  346. 

increase  of  hazard  forfeits,  348. 

lapsed,  not  revivable  after  loss, 
344. 

legal  obligation  to  pay  premium, 
335. 

limiting  time  to  sue  for,  lawful, 
358. 

live-stock,  notice  of    sickness  in, 
356. 

misrepresentation  in,  defined,  342. 

nature  of,  334. 

notice  cancelling  should   be   un- 
equivocal, 345. 

notice  and  proofs  of  loss  in,  354. 

not  lost  by  levy  of  legal  process, 
352. 

oral,  by  agent,  essential  to  name 
company,  337. 

oral,  valid,  353. 

order  cancelling,  ineffective  until 
obeyed,  345. 

paid  for,   may  not   be  cancelled 
summarily,  345. 

policies  of,  344. 

policies  of,  correction  of,  339. 

policies  of,  language  of,  not  tech- 
nical, 340. 

policies  of,  mailed  are  delivered, 
338. 

policies  of,  meaning  of  immediate 
notice  of  loss  in,  355. 

policies   of,    measure   rights   and 
obligations,  337. 

policies  of,  rules  for  construing, 
340. 

policies  of,  writing  prevails  over 
print  in,  340. 

premises  left  vacant,  350. 

premium,   accepting  overdue,   in 
ignorance  of  loss,  344. 


premium,  credit  to  pay,  339. 
premium,    prepayment    of,    may 

be  waived,  356. 
premuim,  unpaid,  justifies  instant 

cancelling,  345. 
principle  of  average  underlies  all, 

359. 
principles    of,    the    same    in    all 

kinds,  335. 
purely  a  personal  contract,  338. 
receipt  for  premium  evidence  of, 

337. 
representations    and    warranties 

in,  341. 
risks,  345. 

subject  to  state  regulation,  360. 
time  renewed,  runs,  344. 
waivers    by   company  of  condi- 
tions in  policies,  356,  357. 
warranty  in,  an  integral  part  of 

contract,  341. 
warranty    in,    invalidates    policy 

when  untrue,  342. 
warranty    in,    not    synonymous 

with  representation,  342. 
Insure,     shipper    not    obliged    to, 

freight  for  carrier,  331. 
Insured  person,  see  Policy-holder. 
Insured     property,     changing    the 

use  of,  effect  of,  349. 
location  of,  347. 
Insurers,    agisters   not,    of   animals 

taken  to  pasture,  201. 
called  underwriters,  335. 
carriers,  of  freight,  303. 
not,  of  goods  that  naturally  decay, 

332. 
Intention,     evil,     no     element     in 

offense   of   selling   adulterated 

milk,  162. 
evil,  unnecessary  to  prove  in  vio- 
lations of  pure  food  laws,  165. 
fraudulent,  without  act  or  speech 

not  actionable,  243. 
important  in  creating  fixture  by 

annexing  chattel,  70. 


Index 


405 


Intention,  Continued 

in  holding  land  adversely,  45. 
ordinarily    decides    whether    sale 

is  executory  or  not,  253. 
overrules  language  in  construing 
contracts,  221. 
Interlineations    in    deeds,    rule    re- 
specting, 25. 
Interpretation,     construction    and, 

of  contracts,  221. 
Intoxication,  avoiding  contracts  on 

account  of,  220. 
Intruder,  adverse  possession  by,  44. 
Invalidity   of   contract,    burden   of 

proving,  237. 
Investigation,    free,    nullifies    false 

representations,  244. 
Involuntary    bankruptcy,    farmers 
not  subject  to,  8,  9. 
payments  under  duress  may  be 
recovered  back,  246. 
Iowa,    courts,  refusal    of,  to   annul 
notes    for    "Bohemian    oats," 
241. 
chattel  mortgage  lien  on  progeny 
of    mortgaged    live    stock    in, 
204. 
doctrine  that  surface  water  is  a 
common   enemy,    modified   in, 
104. 
law    in,    act    of    God    following 

carrier's  delay,  308. 
theft  of  dog  larceny  in,  208. 
Irresponsible        trespassers,      land- 
owner's duty  as  to  injuries  to, 
199. 
Irrigable,    riparian    land    alone,    at 

common  law,  125. 
Irrigated    tracts,    substitutions    of, 

126. 
Irrigation,  112. 

abrogation    of   common   law   re- 
specting, 116. 
area  of  riparian  land  entitled  to, 

115. 
at  common  law,  112. 


conduits  and  works  for,  121. 
contents  of  notice  of  appropria- 
tion of  water  for,  117. 
corporations  charged  with  public 

duties,  135. 
corporations,  duty  of,  to  supply 

consumers,  135. 
corporations,  need  of,  134. 
corporations,  organized  for  profit, 

133. 
defined,  112. 

districts,  public  corporations,  132. 

ditch,  appropriated  spring  ap- 
purtenant to,  128. 

ditch,  condemning  right  of  way 
for,  130. 

ditch,  implied  grant  of  right  of 
way  for,  124. 

ditch,  ownership  of,  on  public 
lands,  127. 

ditch,  persistent  neglect  to  use, 
abandonment,  123. 

ditch,  right  to  change,  122. 

ditch,  right  to  remake  and  use 
abandoned,  122. 

ditch,  right  of  way  for,  124. 

ditch,  use  of,  in  common,  121. 

ditches,  exemptions  of,  from  taxa- 
tion, 128. 

doctrine  of  appropriation  substi- 
tuted for  common  law  of  ri- 
parian right,  116. 

equality  among  riparian  owners 
in,  114. 

extent  of  arid  region  in  United 
States  in  need  of,  115. 

in  England,  112. 

incidental  at  common  law  to 
riparian  land,  125. 

means  immaterial  to  divert  and 
convey  water  for,  121. 

possessory  right  to  land  au- 
thorizes appropriation  for,  125. 

posting  and  recording  notice  of 
appropriation  for,  117. 

public  use  of  water,  128. 


406 


Index 


Irrigation,  Continued 

right  to  change  point  of  divert- 
ing water  for,  121. 
riparian  right  of,  112. 
riparian  right  to  pump  water  for, 

114. 
statutes     regulating,     construed 

liberally,  131. 
use    of    water   for,    a    secondary 
right,  119. 
Irrigators,  associations  of,  133. 
Islands  between  bank  and  channel 

of  stream,  title  to,  61. 
Issue,  of  animal  hired  out  belongs 
to  lessee,  203. 
domestic  animals,  chattel  mort- 
gage liens  on,  203. 

Jackasses,   exempt  as  horses  from 

execution,  185. 
Jacks    kept    standing    in    view    of 

dwelling,  nuisances,  151. 
Jars,  milk,  laws  requiring,  to  show 

fluid  capacity,  163. 
Jockej^'s  wages  in  races,    agister's 

lien  does  not  cover,  202. 
Joyce    (Joseph    A.),    work    on    In- 
surance cited,  334. 
Judgments,  collusive,  nullities,  6. 
Judicial   conflict,   act  of  God,   fol- 
lowing carrier's  delay,  307. 
conflict,  chattel  mortgages  on  in- 
crease of  animals,  203. 
conflict,  effect  of  accepting  goods 

not  delivered  on  time,  269. 
conflict,     implied     warranty     of 
animals    sold    to    breed    from, 
282. 
conflict,    insurance     after    extra 

hazard  ceases,  348. 
conflict,  navigable  streams,  95. 
conflict,    time    limit    for    claims 

against  carriers,  327. 
decisions,  common  law,  2. 
oversight    of   irrigation    corpora- 
tions, 133. 


relief  for  mistake  given  only  for 
material  mistakes,  247. 
Justifiable  disobedience  of  factor's 
orders,  example  of,  297. 

Kansas,  American  doctrine  of  sales 
from  masses  in,  257. 
chattel  mortgage  liens  on  progeny 
of  mortgaged  live-stock  in,  204. 
Keeper,  of  dog,  who  may  be  charged 
as,  211. 
of  vicious  dog,  duty  of,  to  secure 
the  brute,  210. 
Keeping  brutes  at  stud  in  view  of 
dwelling  a  nuisance,  152. 
cows,  municipal  power  to  inspect 
and  regulate,  150. 
Kent,  Chancellor,  his  fundamental 
principle  in  the  law  of  sales, 
255. 
Kentucky,  farmers  exempt  in,  from 
tax  on  merchants,  11. 
law    in,    act    of    God    following 

carrier's  delay,  307. 
not  negligence  per  se  in,  to  leave 
horse  free  in  the  streets,  196. 
Keys,  of  buildings  always  fixtures, 
70. 
surrendering,    as    a    delivery    of 
goods  sold,  263. 
Killing  chickens  unlawfully  cruelty 
to  animals,  189. 
dogs,  when  lawful,  211. 
domestic    animals,    dogs    unpro- 
tected     by      penal      statutes 
against,  206. 
sound      animal     unjustified      by 
authority     to     slay     diseased 
beasts,  147. 
Kinds,  of  delivery  of  goods  sold,  261. 

of  duress,  245. 
Kitchen  garden  no  farm,  10. 
Knowledge,  agents',  imputed  to  in- 
surance company,  343,  347. 
fierceness  of  savage  dog,  imputed 
to  its  owner,  210. 


Index 


407 


Knowledge,  Continued 

guilty,  no  component  in  selling 
adulterated  milk,  162. 

guilty,  no  component  in  violation 
of  pure  food  law,  165. 

owner's,  presumed  when  animal 
is  habitually  vicious,  193. 

presumed  of  contents  of  deed,  25. 

presumed  of  co-operative  consti- 
tution and  by-laws  by  policy- 
holders, 362. 

procurable  equivalent  to  actual, 
respecting  title  to  land,  39. 

terms  of  insurance  policy  imputed 
to  policy-holder,  339. 

vicious  runaway  horse,  effect  of 
owner's,  on  his  liability,  196. 

Labor,  lien  on  chattel  for,  89. 

long  hours  of,  daily,  may  not  be 
required,  85. 

may  be  required  only  for  lawful 
pursuits,  85. 

strikes  excuse  carriers,  309. 

work   and,    contracts   outside   of 
statute  of  frauds,  226. 
Laborer,    compensation    of,    when 
wages  are  not  agreed  upon,  86. 

discharged  without  good  cause 
entitled  to  wages,  86. 

employed  indefinitely  may  be 
discharged  any  time,  83. 

employed  indefinitely  may  quit 
any  time,  85. 

farm,  lien  on  products  for  wages, 
87. 

farm,  who  is,  within  lien  laws,  87. 

overseer  not  an  agricultural,  with- 
in lien  and  exemption  laws,  88. 

right  of,  to  wages  to  time  of  dis- 
charge, 86. 
Laches  defeats  suit  for  specific  per- 
formance of  contract,  235. 
Lake,  fresh  water,  ownership  of,  63. 

great,  land  under  water  of, 
ownership  of,  93. 


included  in  waters  of  farm,  92. 

low    water    mark    boundary    on 
large  unnavigable,  63. 

name,  not  dependent  on  area,  93. 

sea  and,  shore  defined,  63. 

shore  of,  farm  boundarj%  49. 

still  such  though  called  a  marsh, 
94. 

too  shallow  for  navigation,  95. 
Lambs  sold,  deliverj'  of,  264. 
Land,    alluvial,    formed   impercep- 
tibly, 21. 

area    of,    subject    to    mechanics' 
lien,  88. 

buyer's  right  to  marketable  title 
to,  23. 

covenants  running  with,  32. 

description    of,    rules    for    inter- 
preting, 54. 

devolution  of,  by  deed,  14,  15. 

devolution  of,  by  devise  or  de- 
scent, 18. 

easements  encumbrances  on,  29. 

estates  in,  13. 

extent  of,  perpendicularly,  49. 

grants  of,  how  shown,  14. 

how  acquired,  14. 

how  inclosed,  55. 

marketable  title  to,  what  is  a,  24. 

modes  of  gaining  ownership  of, 
14. 

never  an  appurtenance  to  other 
land,  66. 

perfect  title  to,  what  is  a,  23. 

possession  of,  37. 

riparian,  limited  to  water  shed,  99. 

riparian,  only  when  bordering  on 
water,  99. 

sale  of  implies  covenant  to  give 
good  title,  23. 

title  to,  by  accession,  20. 

title  to,  by  grant,  14. 

title  to,  by  prescription,  19. 

title  to,  how  passed  by  deed,  16. 

under  navigable  waters,   owner- 
ship of,  93. 


408 


Index 


Landlord,  cropper  and,  when   ten- 
ants in  common  of  crops,  181. 

lien  of,  on  crops  for  rent  of  farm, 
180. 

manure  on  rented  farm  belongs 
to,  183. 

owns  crops  grown  on  shares  until 
divided,  181. 
Landlord  and  tenant,  technical  re- 
lation of,  usually  not  created 
by  farming  on  shares,  91. 

when  relation  arises  by  croppers' 

agreement,  181. 

Landowner's  lack  of  duty  toward 

trespassers,      old      rule      and 

modern  mitigation  of  it,    199. 

Landslide,    not    classed    as    act    of 

God,  305. 
Language,  abusive,  no  ground  for 
quitting  work,  85. 

attributed    to    untechnical    con- 
tracts always  popular,  222. 

formal,   unnecessary   for   a   war- 
ranty, 271. 

governs  punctuation  in  contracts, 
222. 

plain,     binds     contractors     who 
meant  otherwise,  221. 

reflects  the  subject  of  a  contract, 
222. 

yields  to  intention  in  construing 
contracts,  221. 
Lapsed  insurance  not  revived  after 

loss,  344. 
Larceny,  by  factors,  294. 

real  property  not  the  subject  of, 
177. 

theft  of  a  dog,  208. 

turpentine  stolen  from  tree  boxes, 
177. 
Lard,  packages  of,  statutes  requir- 
ing marks  upon,  169. 
Large,    animals   when    running    at, 
190,  212. 

delivery    of,    and    heavy    goods 
sold,  262. 


surplus  or  deficit  not  covered  by 

"more  or  less,"  49,  259. 
Lateral  extension  of  farm,  48. 
Law,  and  litigation,  1. 

common,    derivation   of,    in    the 

United  States,  3. 
common,   governs  in  absence  of 

legislation,  3. 
common,  nature  of  the,  3. 
common,  or  unwritten,  the  deci- 
sions of  courts,  2. 
defined,  1. 

farmers  as  viewed  by  the,  7. 
foreign,  ignorance  of,  excuses,  248. 
ignorance  of,  why  no  excuse  for 

violating,  1. 
looks  with  disfavor  on  forfeitures, 

341. 
mistake  of,  no  ground  for  avoid- 
ing deed,  248. 
national   bankrupt,     inapplicable 

to  farmers,  8,  9. 
of  place  of  contract  a  part  of  the 

contract,  223. 
policy  of,  to  encourage  trade,  etc., 

71. 
protection  of,  essential  to  liberty, 

5. 
reason  the  life  of  the,  3. 
sales',  state  of,  249. 
statute  or  written,  2. 
strict  compliance  -n-ith  essential  in 

selling  impounded  animals,  190. 
suits,  see  Actions, 
written  and  unwritten,  2. 
written,   the  will  of  a  sovereign 

state  expressed  in  statutes,  2. 
Lawful,   driving  stock  off  of  open 

land,  199. 
intent  presumed  in   contracting, 

222. 
killing  of  dogs,  211. 
pursuit  of  stock  that  escape  from 

highways,  199. 
work  all  that  a  farm  laborer  may 

be  required  to  do,  85. 


Index 


409 


Lead  pencil,  bill  of  lading  written 

with,  good,  331. 
Leakage,  carrier  not  liable  for,  of 

fluids,  320. 
Lease,  agreement  to  farm  on  shares, 

not  a,  90. 
crops  growing  at  end  of,  owner- 
ship of,  179. 
forfeited,  gives  landlord  growing 

crops,  179. 
Leased  farm,  crops  grown  on  usually 

belong  to  tenant,  179. 
Legal  delivery  of  goods  sold,  factors 

in,  262.  " 
distinction  between  emblements 

and  other  crops,  175. 
meaning  of  "act  of  God,"  303. 
process,  levy  of,  does  not  cancel 

insurance,  352. 
prohibition  against  purchases  by 

agents  to  sell,  294. 
relation     of     farmer     and     his 

workers,  82. 
remedy  defined,  5. 
remedy  for  every  wrong,  4. 
remedy   none  for  what   is  itself 

illegal,  4. 
remedy,  when  available,  4. 
sense  of  perishable  property,  332. 
status  of  dogs,  206. 
status  of  growing  crops,  172. 
Legislation,  congressional,  concern- 
ing pure  food,  166. 
police,  arbitrary  and  unjust,  un- 
constitutional, 140. 
must    have    relation    to    avowed 

end,  140. 
Legislative   oversight   of   irrigation 

companies,  133. 
power    to    add    to    number    of 

nuisances,  144. 
power  to  enact  food  laws,  165. 
Legislature,      exclusive    judge      of 

needed  police  laws,  141. 
limit  of  power  of,   in  chartering 

irrigation  corporations,  134. 


power  of,  to  designate  irrigation 
agencies,  131. 

powerless  to  interdict  sales  of 
wholesome  food  by  its  own 
name,  165. 

power  of,  to  penalize  adulteration 
of  food,  164. 

power  of,  to  penalize  fraud  in 
selling  food,  164. 

sole  depositary  of  power  of  emi- 
nent domain,  129. 
Length,  reasonable  time  sometimes 

of  considerable,  233. 
Letters,  offers  and  acceptances  by, 

make  contracts,  254. 
Levy  on  execution,  cropper's  share 

of  crop,  subject  to,  182. 
Liabilities  and  redress  for  diseased 

animals,  194. 
Liability,  bank's,  to  consignors  for 
factors'  deposits,  298. 

carrier's,  see  Carriers. 

collision  while  driving  on  wrong 
side  of  road,  197. 

communicating  disease  by  war- 
ranted animal,  281. 

consignor's  to  factor  for  advances, 
297. 

co-operative  policy-holders'  to 
assessment,  363. 

factors',  see  Factors. 

farmers',  for  acts  of  servants, 
89. 

farmers',  for  adulteration  of  milk 
by  servant,  162. 

farmers',  for  casualties  in  farm 
waters,  110 

injuries  done  by  dogs,  210. 

insurance  companies',  see  Insur- 
ance. 

irrigation  company's  for  not  fur- 
nishing water,  135. 

none  for  damage  done  by  care- 
fully floated  logs,  98. 

none  for  deflecting  eurfaca 
water,  104. 


410 


Index 


Liability,  Continued 

none   for  digging  well   and   tap- 
ping sub-surface  water,  107. 
none  for  not  doing  what  is  im- 
possible, 237. 
none  for  reasonably  using  riparian 

water,  100. 
none  for  unpreventable  injuries 

by  animals,  193. 
owner's,    for    acts    of    domestic 

animals,  192. 
owner's,    for    allowing    diseased 

cattle  to  go  at  large,  194. 
polluting  springs  and  wells,  108. 
polluting     underground    waters, 

108. 
Liberally,    insurance    policies    con- 
strued, in  favor  of  insured,  340. 
Liberty,  of  contract  an  inalienable 

right,  216. 
personal,  restrainable  in  interest 

of  public  health,  142. 
protection  of  laws,   essential  to, 

5. 
to  use   land   without   profit,    an 

easement,  66. 
License,  advances  give  factor  no,  to 

choose  another  market,  290. 
continuance    of,    dependent    on 

givers'  will,  80. 
defined,  79. 
fees,  municipal,    to    exact  from 

hucksters,  154. 
laws,  application  of,  to  farmers, 

10,  11. 
laws,  pertaining  to  sales  of  milk, 

158. 
limited  strictly  by  its  terms,  81. 
milk   vendors,    municipal    power 

to,  158. 
municipal,  to  collect  and  remove 

garbage,  153. 
not  transferable,  80. 
nurserymen  and  sellers  of  nursery 

stock,  142. 
oral,  good,  80. 


oral    sale  of  standing  timber  a 

mere,  to  cut,  228. 
open   land    not    a,    to    cattle    to 

trespass,  198. 
personal  privilege,  80. 
purchaser's  implied,  to  go  on  land 

for  his  purchase,  81. 
remedy  for  wrongful  refusal  of, 

to  gather  garbage,  154. 
respecting  real  property,  79. 
revocable  at  giver's  pleasure,  80. 
revoked  by  conveyance  of  land, 

81. 
revoked  by  death,  80. 
revocation  of,  to  sell  milk,  159. 
right  of  way  for  irrigation  ditch 

not  created  by,  124. 
tax  lawfully  laid  on  milkmen,  158. 
taxes,  farmers'  exemptions  from, 

11. 
Licenses,  79. 
Liens,  agisters',  201. 

assessments     to     pay     irrigation 

bonds,  133. 
chattel    mortgage,    on    issue    of 

animals,  203. 
factors',  296. 

follow  land  burdened,  89. 
landlords',  for  farm  rent,  180. 
mechanics',  construction  of  lawa 

giving,  88. 
workmen's,  for  labor  on  chattels, 

89. 
Life,    threats    against,    avoid    con- 
tracts, 245. 
Lightning,  act  of  God,  303. 

insurance  of  animals  against,  345. 
loss  by,  when  not  insured  against, 

346. 
Limit,  quantity  of  water  usable  for 

irrigation,  120. 
right  of  irrigation  at  common  law, 

113. 
riparian  land,  99. 
time     for     rejecting     warranted 

article,  285. 


Index 


411 


Limitations    of    carriers'    liability, 

see  Carriers, 
factors'    authority   and   liability, 

see  Factors, 
underwriters'     liability,    see    In- 
surance. 
Limitations,  on    legislative    power 

concerning  food  laws,  165. 
nature  of,  20. 
on   municipal   power   concerning 

nuisances,  150. 
on  police  powers,  140. 
statutes  of,  how  esteemed,  19. 
Line    fence    misplaced    in    adverse 

possession,  45. 
trees,  59. 
Lines,  see  Boundaries. 
Liquids,     carriers    not     liable     for 

evaporation  or  leakage  of,  .320. 
Litigation,  public  interest  to  have 

it  end,  6. 
sales  the  greatest  subject  of,  249. 
Littoral,  proper  name  for  shore  land 

on  tide  water,  99. 
Livery    horses,     exempt    as    work 

horses  from  execution,  185. 
Live-stock,  see  Animals. 
Living  stream,  water-course  a,  94. 
Location    of    right    of    way,    how 

changed,  74. 
Lodging,  farm  laborer's,  should  be 

clean  and  comfortable,  85. 
Log-driving  by  necessity,   Wiscon- 
sin statute  concerning,  99. 
Logs   floated   carefully   not   legally 

damaging,  98. 
Long  (Joseph  R.),  his  work  on  the 

Law  of  Irrigation,   cited,    118, 

119. 
Loss,  falls  on  buyer  in  sale  without 

fraud  or  warranty,  283. 
risk  of,  follows  title  to  property 

bought  and  sold,  258. 
Lost,  factor's  lion,  when,  296. 
Louisiana,    farmer   in,    not   subject 

to  peddler's  license,  11. 


Lowland  lake  shore  not  included  in 

bed,  93. 
Low  water  mark  boundary  on  large 

unnavigable  lakes,  63. 
Lumber  for   building  granary  and 

bins  not  fixtures,  73. 

Machine  ordered  by  its  name  from 
maker  not  impliedly  warranted 
fit  for  use,  283. 
Maiming,  fear  of,  duress  of  person, 

245. 
Maine,  American  doctrine  of  sales 
from  masses  in,  257. 
oral  sales  of  standing    timber  in. 

228. 
remedy  in,   when   buyers  refuse 

goods  sold,  270. 
stallion  not  warranted  to  beget 

healthy  colt  in,  282. 
statute  of,  requiring  registration 
of  stalHons,  187. 
Maintain  right  of  way,  whose  the 

duty  to,  75. 
Maize    covered    by    insurance    of 

grain,  346. 
Mandamus,      irrigation     company 
compelled  by,  to  furnish  water, 
136. 
remedy    for    carrier's    refusal    to 
furnish  cars,  311. 
Manufacture,    contract  to,   outside 

statute  of  frauds,  226. 
Manufacturing     defects     in     farm 
machinery  impliedly  warranted 
against,  283. 
Manure,  belongs  to  the  landowner, 
183. 
excess  of,  ownership  of,  on  rented 

farm,  183. 
included  in  land,  51. 
real,  not  personal  property,  183. 
status    of,    different    from    crops, 
183. 
Marauding  dog,  lawful  to  kill,  214. 
Indians,  public  enemies,  308. 


412 


Index 


Margin,   lowland,   not  included  in 

bed  of  lake,  93. 
narrow  in  sales  of  "more  or  less" 

land,  49. 
email  in  sales  of  "more  or  less" 

personal  property,  259 
Mark,  high-water,  usual   boundary 

on  navigable  water,  62. 
low- water,  when  a  boundary,  63. 
signature  by,  good  on  contracts, 

220. 
Market,    contracts    to    monopolize 

the,  void,  240. 
factor's  duty  to  sell  in  his  own, 

290. 
price,  factor  who  gets  the,  does 

his  whole  duty,  291. 
value,  factor  doing  his  best  may 

sell  below,  293. 
Marketable  title  to  land,  buyer  en- 
titled to,  23. 
gained  by  adverse  possession,  20. 
Markets,   municipal    establishment 

and  oversight  of,  154. 
Marks,  in  boundaries  called  monu- 
ments, 54. 
of  possession  of  land,  38,  43. 
on  food  packages,  laws  requiring, 

168. 
on    freight,     carriers    bound    to 

notice,  323. 
on  imitation  butter,  penal  statute 

requiring,  169. 
Marsh,  lake  a  lake  though  called  a, 

94. 
in  line  of  water-course  does  not 

affect  it,  94. 
Maryland,    oral    sales   of   standing 

timber  in,  228. 
statute    of,    for    registration    of 

domestic  animals,  186. 
Massachusetts  doctrine  concerning 

implied  warranties  of  diseased 

animals  sold  for  food,  278. 
law  in,  act  of  God  following  car- 
riers' delay,  308. 


Masses,  sales  made  out  of,  254. 

Master  and  servant  the  legal  rela- 
tion of  farmer  and  farm  hand, 
82. 

Master's  liability  when  servant 
adulterates  milk,  162. 

Materials,  soundness  of,  impliedly 
wajranted  in  sales  of  farm  ma- 
chinery, 283. 

Meandering  boundary  lines,  62. 

Meaning,  accorded  insurance  policy 
should  be  unforced,  341. 
legal,     of     perishable     property, 

332. 
of  word   "delivery"   in   sales  of 
goods,  261. 

Means  used  to  divert  and  convey 
water  to  irrigate  immaterial, 
121. 

Measure,  goods  sold  by,  must  be 

measured  to  complete  sale,  255. 

of  damages,  see  Damages,  measure 

of. 
of  owner's  negligence  respecting 
domestic  animals,  192. 

Measures,  regulation  of,  by  law, 
162. 

Measuring,  need  of,  water  appro- 
priated for  irrigation,  137. 

Mechanics'  lien  laws,  how  con- 
strued, 88. 

Merchantable,  fruit  sold  ungrown 
warranted,  276. 

Meteorites  falling  from  sky,  owner- 
sliip  of,  -51. 

Michigan,  factor's  act  in,  300. 
law  in,  act  of  God  following  car- 
rier's delay,  308. 
relief  in,  to  ^^ctims  of  "Bohem- 
ian oats"  swdndle,  241. 
ungathered    crops   in,    belong   to 
landlord   when  farm  lease  ex- 
pires, 179. 

Milch  cows,  laws  requiring  regis- 
tration of,  health  measures, 
186. 


Index 


413 


Milk,  carrier's  duty  to  provide  pro- 
per means  of  caring  for,   316. 

diluted  with  water  adulterated, 
161. 

easily  contaminated,  156. 

failing  to  meet  prescribed  tests 
lawfully  destroyed,  160. 

from  slop-fed  cows  lawfully  for- 
bidden to  be  sold,  157. 

harmless  additions  to,  may  con- 
stitutionally be  forbidden,  162. 

laws  to  secure  purity  and  rich- 
ness of,  stringent,  157. 

meaning  of  word,  in  statutes, 
157. 

regulating  the  production  and 
sale  of,  156. 

revocation  of  licenses  to  sell,  159. 

sale  of,  from  unsanitary  premises 
lawfully  interdicted,  157. 

samples  of,  lawfully  taken  with- 
out payment,  159. 

sold  under  legal  standard  not 
excused  by  coming  from  well- 
fed  cows,  161. 

under    legal     standard    lawfully 
seized  and  destroyed,  160. 
Milkmen,  lawfully  required  to  pay 
fee  to  board  of  health,  159. 

lawfully  required  to  pay  license 
tax,  15S. 

lawfully  required  to  register,  159. 

la^vfuUy    required     to    surrender 
free  samples,    159. 
Mill  lawfully  burned  to  save  high- 
way from  washout,  146. 
Mill-dam  lawfully  destroyed  to  save 

highway,  146. 
Millet,    probably     covered    l)y    in- 
surance of  grain,  146. 

seed,  implied  warranty  in  sale  of, 
274. 
Mill   waste,  unlawful   to   cast,   into 

riparian  stream,  101. 
Minds,    meeting    of,    essential    to 
valid  contract,  219. 


Mine  waste,  unlawful  to  cast,  into 
riparian  stream,  101. 

Minerals   underlying  farm,   owner- 
ship of,  51. 

"Miner's   inch,"    indefiniteness    of 
term,  137. 

"Miner's  measurement"  uncertain 
of  meaning,  137. 

Minnesota,    American    doctrine    of 
sales  from  masses  in,  257. 
doctrine  in,  as  to  warranty  in  sell- 
ing diseased  beast  for  food,  277. 
factor's  act  in,  299. 
farmer  subject  to  peddler's  license 

in,  12. 
remedy  in,   when   buyer  refuses 

goods  sold,  270. 
rule  in,  as  to  navigable  streams, 
96. 

Miscarriages  of  animals  in  transit 
by  carrier's  negligence,  322. 

Mischief,  dog  doing,  lawful  to  kill, 
213. 

Misdemeanor  in  Kentucky  not  to 
get  license  for  stallion,  188. 

Misfortune  no  excuse  for  not  per- 
forming contract,  238. 

Misled,  false   representations  must 
have,  to  avoid  contract,  244. 

Misplaced    line    fence    in    adverse 
possession,  45. 

Misrepresentations,  in  insurance  de- 
fined, 342. 
vitiating    contracts    must    relate 
to  material  facts,  244. 

Missing  boundary  line  how  traced, 
55. 

Mississippi,   chattel  mortgage  lien 
in,  on    progeny   of    mortgaged 
live-stock,  204. 
law    in,    act    of    God    following 
carrier's  delay,  308. 

Missouri,     American     doctrine     of 
sales  from  masses  in.  257. 
law    in,    act    of    God    following 
carrier's  delay,  307. 


414 


Index 


Mistake,    agent's,    in    stating    lo- 
cation of  insured  property,  347. 
honest,  no  excuse  for  false  answer 
in  applying  for  insurance,  341. 
mutuality    of,    requisite    for    re- 
forming contract,  247. 
of  law  no  ground  to  avoid  deed, 

248. 
of  law  of  another  state  ground  for 

relief,  248. 
of  name  of  insured  does  not  affect 

insurance,  338. 
oral  proof  received  of,  in  making 

contract,  248. 
performance  of  contract  founded 
on,  never  decreed,  235. 
Mistaken     boundary     in     adverse 

possession,  45. 
Mistakes  in  locating  division  fences, 

56,  57. 
Mitchell,  Mr.  Justice,  of  Minnesota, 

opinion  on  emblements,  175. 
Mob,  carrier's  delay  caused  solely 
by,  when  an  excuse,  316. 
riotous,  not  classed  as  the  public 
enemy,  308. 
Modes  of  acquiring  a  farm,  13. 
Money    paid    under    mistake,    re- 
covery of,  247,  248. 
Monopoly  contracts  void  by  public 

policy,  240. 
Montana,    chattel     mortgage    lien 
in,   on  progeny  of  mortgaged 
live-stock,  204. 
Monuments,    control    courses    and 
distances  in  boundaries,   54. 
natural  control  artificial,  in  boun- 
daries, 54. 
Moral  power  to  consent  necessary 

to  validity  of  contract,  220. 
Morals,  contracts  contrary  to  good, 
void,  239. 
public,   regulated   by   the   police 
power,  139. 
"More  or  less"  covers  only  small 
differences,  49,  259. 


Mortgage,     chattel,     see      Chattel 

mortgage. 
Mortgagee's    interest    in    property 

insurable,  352. 
Mortgaging  insured   property   for- 
feits insurance,  354. 
Motley's,  John  Lothrop,  Rise  of  the 
Dutch  Republic, referred  to ,  208. 
Mouth  destinguishable  from  source 

in  a  water-course,  94. 
Mules     exempt     as     horses     from 
execution,  18.5. 
insured  in  barns,   347. 
Municipal     laws,     application     of, 
to  farmers,  149,  154. 
license  taxes,  farmers'  exemptions 

from,  11. 
ordinances  statute  law,  2. 
power  to  abate  nuisances,  150. 
power  concerning  garbage,    153. 
power     to     penalize     owners     of 
animals  running  at  large,  151. 
prohibition  of  sales  of  wholesome 

food  void,  155. 
regulation  of  sales  of  food,  valid- 
ity of,  154. 
Municipalities,  police  power  in,  149. 
Mustard  seed,  wild,  sold  for  rape 

seed,  seller's  liability,  274. 
Mutual   assent  requisite   to   end   a 
contract,  236. 
fire  insurance   companies,   359. 
insurance  company  defined,  360. 
mistake    requisite    to    reform    a 

contract,  247. 
obligation  essential  in  sales,  250. 
obligation     of     policy-holders    a 
feature     of     co-operative     in- 
surance, 361. 
Mutuality  essential   to   valid   con- 
tract, 219. 

Name,  area  does  not  give,  to  sheet 
of  water,  93. 
on    dog's      collar      evidence      of 
ownership,  211. 


Index 


415 


Name,  Continued 

factor  may  sell  consigned  goods 

in  his  own,  288. 
mistake    in    insured's,  does    not 

affect  insurance,  338. 
Names,   persons   and,    identical  in 

chains  of  title,  15. 
Natural,  gas  under  farm,  ownership 

of,  51. 
objects  predominate  as  boundary 

monuments,  54. 
water-course  may  be   either,   or 

artificial,  94. 
Nature,  of    adverse    possession    of 

land,  40. 
of  common  law,  3. 
of  contracts,  216. 
of  insurance,  334. 
of  the  police  power,  139. 
Navigability,  of    streams,    judicial 

differences  over,  95,  96. 
test  of  a  public  stream,  95. 
Navigable  streams,  95. 

agister  not  bound  to  fence  along, 

201. 
public  highways,  95. 
Navigation,   capacity  not  use  for, 

test   of  navigability,   96. 
sheet  of    water  too  shallow  for, 

may  be  a  lake,  93. 
Nebraska,    chattel    mortgage    lien 

in,   on  progeny  of  mortgaged 

live-stock,  204. 
modification  in,  of  doctrine  that 

surface    water    is    a    common 

enemy,  104. 
rule    in,  respecting    "way  going 

crop,"  179. 
Necessity,  in    appropriating    water 

to  follow  statute  strictly,   118. 
easment  of,  in  water  piped  from 

spring,  79. 
irrigation  corporations  a,   134. 
laborer  bound  to  workin  case  of,  85. 
limits    quantity    of  water  usable 

for  irrigation,  120. 


of  police  laws,  legislature  the 
sole  judge  of,  141. 

of  strictly  following  the  law  in 
selling  impounded  animals. 
190. 

way  of,  see  Way  of  necessity. 
Neglect,   of    duty  ground   to    dis- 
charge laborer,  84. 

to  furnish  proofs  of  loss  forfeits 
insurance,  355. 

to  use  appropriated  water  no 
abandonment,  123. 

to  use  easement  does  not  ex- 
tinguish it,  69. 

to  use  irrigation  ditch  an  aban- 
donment, 123. 

to  use  right  of  way  does  not 
abolish  it,  76. 

to  use  riparian  rights  no  sur- 
render, 102. 

unreasonable,  to  sue  for  specific 
performance    of    contract    de- 
feats suit,  235. 
Negligence,  agister  liable  only  for, 
201. 

carrier's,  see  Carriers. 

factor  liable  only  for,  294. 

farmer's  liability  for,  of  farm 
servant,  90. 

fires  caused  by  common,  covered 
by  insurance,  345. 

ground  of  liability  for  injuries 
by  domestic  animals,  192. 

leaving  horses  unsecured  in  pub- 
lic streets,  195. 

log-driver's  liability  for,  and 
recklessness,  98. 

recovery  for  crops  destroyed  by, 
178. 
New  Brunswick,  chattel  mortgage 
lien  in,  on  progeny  of  mort- 
gaged live-stock,  204. 
New  Hampshire,  modification  in, 
of  doctrine  that  surface  water 
is  a  common  enemy,   104. 

pure  food  legislation  in,  164. 


416 


Index 


New  Jersey,  chattel  mortgage  lien 
in,  on  progeny  of  mortgaged 
live-stock,  203. 

test  of  navigable  stream  in,  96. 
New   York,   American  doctrine  of 
sales  from  masses  in,  257. 

co-operative  fire  insurance  in, 
366. 

dictum  of  Supreme  Court  in, 
on  implied  warranties  in  sell- 
ing human  food,  277. 

law  in,  act  of  God  following 
carrier's  delay,  307. 

policy-holder's  li.ibiiities  in  co- 
operative insurance  in,  363. 

remedies  in,  when  buyer  re- 
fuses goods  sold,   269. 

theft  of  dog  larceny  in,  208. 

warranty  in,  when  diseased  ani- 
mals are  sold,  277,  278. 
North  Carolina,  test  of  navigable 
stream  in,  96. 

unreaped  grain  not  emblements 
in,  175. 
Note,  promissory,  factor   may  ac- 
cept of  purchaser,  288. 

giv-ing,     for     warranted     article, 
effect  of,  284. 
Notice,  assessment,  requisite  to  put 
policy-holder  in  default,  364. 

cancelling  insurance  must  be  un- 
equivocal, 345. 

charges  keeper  of  \'icious  dog 
with  responsibility,  210. 

contents  of,  appropriating  water, 
117. 

of  loss,  insurance  company  may 
waive,  357. 

of  loss  of  property  insured,  354. 

mere,  of  policy  ready  no  com- 
pletion of  insurance,  336. 

possession  of  land  as,  39. 

posting  of,  in  appropriating 
water,  117. 

recording,  in  appropriating  water, 
117. 


shipper  bound  to  give  carrier,  oi 

need  of  cars,  311. 
of  sickness  in  live-stock  insurance, 

356. 
timely,    of    claims,    carrier    may 

lawfully  require,  330. 
Notif  jang  owner  to  keep  dog  home  no 

justification  for  killing  it,  212. 
Notoriety    in    adverse     possession, 

43. 
Noxious,    police   power    suppresses 

what  is,  140. 
Nuisance,  animal  running  at  large 

in  public  highway  a,  191. 
biting  dog  lawfiilly  killed  as  a,  213. 
defined,  150. 
discharging  sewage  in    a   stream 

a,  101. 
object    in    highway   frightful    to 

horses  a,   197. 
oil  escaping  from  pipe  line  a,  108. 
sheep-worrying      dog      lawfully 

killed  as  a,  215. 
Nuisances,  brutes  at  stud  in  public 

andinviewof  dwellings  are,  151. 
legislative  power  to  add  to  the 

number  of,  144. 
in  municipalities,  150. 
summary  abatement  of,  143. 
Nullities,     contracts     contrary     to 

statute  are,  239. 
unreasonable    rules    of    carriers 

are,  325. 
Number,  articles  sold  by,  must  be 

counted  to  complete  sale,  255. 
Nursery  business,  police  power  to 

regulate,  142. 
stock,  ordinary  measure  of  dam- 
age for  loss  of,  178. 
police  power  over  sales  of,  142. 
warranties  in  sales  of,  273. 

Oats,  covered  by  insurance  of  grain, 
346. 
implied    warranty    of    fitness    aa 
food  for  horses,  279. 


Index 


417 


Obey,  factor  not  bound  to,  orders 
contrary  to  his  contract,  292. 
farm   laborer   bound   to,    reason- 
able orders,  84. 

Objections  when  waived  by  accept- 
ing goods  sold,  268. 

Objects  in  highways  frightful  to 
horses  nuisances,  197. 

Obligation,  mutuality  of,   essential 
in  sales,  250. 
oral  agreement  valid  to  discharge 

one's  own,  226. 
policy-holder's,  to  pay  insurance 

premium,  335. 
to  speak,   no  fraud  to  be  silent 
without  an,  245. 

Obligations,  carriers',  see  Carriers. 

Obligatory,  contracts  are,  upon  all 
or  none,  220. 

Observing  legal  formalities  does 
not  eliminate  fraud,  243. 

Obstructing,  navigable  stream  un- 
lawful, 95. 
surface    water    flowing    toward 
stream  unlawful,  106. 

Occupant  of  land  dislodged  only 
by  superior  right,  38. 

Occupation  of  land  notice  of  occu- 
pant's rights,  39. 

Occupying  insured  premises,  what 
constitutes,  350. 

Ocean  shoal,  uncharted,  act  of  God, 
303. 

Offensive,  police  power  suppresses 
what  is,  140. 

Offer,  accepted,  may  not  be  with- 
drawn, 254. 
of  goods  for  sale  warrants  title, 

271. 
of  warehouse  receipt  good  tender 
of  grain,  265. 

Offers  to  sell  and  acceptances,  253. 

Officers,  see  also  Health,  board  of. 

Officers,  co-operative  insurance  com- 
pany's, when  liable  to  policy- 
holder, 365. 

2b 


public,    immunity    of,    from    pri- 
vate actions,  146. 

public,  seizure  of   freight   by,  ex- 
cuses carrier,  318. 
Official,    criticism    of    co-operative 
fire  insurance,  366. 

immunity  and  liability  in  exer- 
cising police  powers,  146. 

oversight,    insurance    companies 
subject  to,  360. 
Offspring,    animal,     ownership    of, 
follows  title  to  dam,  202. 

chattel    mortgage    liens    on,    of 
animals,  203. 
Ohio,  courts,    refusal    by,    of   relief 
to  victims  of  "Bohemian  oats" 
swindle,  241. 

law    in,    act    of    God    following 
carrier's  delay,  308. 

statute   of,    against  adulterating 
vinegar,  165. 
Oil,  escape    of,    from    pipe  line,    a 
nuisance,  108. 

under  farm,  ownership  of,  52. 
Oleomargarine,      federal     tax     on, 
presumably  for  revenue,  167. 

power  of  Congress  to  tax,  166. 

sale  of,  for  what  it  is,  net  pro- 
hibitable,  166. 

sold  lawfullyfor  wagon  grease,  166. 
Open  land,  dri\ring  stock  off,  law- 
ful, 199. 

land,  driving  stock  on,   trespass, 
199. 

land,  trespasses   of   cattle   upon, 
trivial,  198. 

platform,    delivering   freight    on, 
316. 
Opinion,  no  fraud  in  expressing  ar 

extravagant,  244. 
Oral,   abrogation    or    alteration    of 
written  contracts,  231. 

contracts,  see  Contracts. 

exception  in  selling  land   gener- 
ally invalid,  35. 

lici'nse  relating  to  land  good,  80. 


418 


Index 


Oral,  Continued 

preliminary     agreements     merge 
in  final  written  contracts,  221. 
proof    permitted    of    mistake    in 

making  contract,  248. 
reservation  in  selling  land  gener- 
ally invalid,  35. 
testimony    received    as    to    con- 
sideration   and     signature     of 
deed,  26. 
testimony     received     to     prove 
fraud  in  written  contract,  243. 
Order,  cancelling  insurance  ineffec- 
tive until  obeyed,  345. 
of    diverting    fixes    priority    to 

appropriated  water,  122. 
public,   conserved  by  the  police 
power,  139. 
Ordered,    goods  used   though   not, 

must  be  paid  for,  269. 
Orders,  factor's,  see  Factors. 
Ordinances,  municipal,  see  Munici- 
pal ordinances. 
Ordinary   care    measures    carrier's 
duty  to  live-stock  transported, 
320. 
Ouster,   wrongful,   from  possession 

of  land,  a  disseisin,  40. 
Overcharges  recoverable  from  car- 
riers, 302. 
Overflow  of  stream  by  freshet,  sur- 
face water,  103. 
Overhanging  boundaries,  branches 

of  trees,  59. 
Overseer  not  classed  as  agricultural 

laborer,  88. 
Overwhelming,  act  of  God  always, 

303. 
Owner,    animal    dying    in    streets, 
rights  and  duties  of,  152. 
dam's,  owns  her  progeny,  202. 
delivery   of   freight   to  true,   ex- 
cuses delivery  to  consignee,  318. 
factor  prima  facie  an,  287. 
liability  of,  for  acts  of  domestic 
animals,  192. 


liability  of,  for  allowing  diseased 
cattle  at  large,  194. 
Ownership,    claim    of,    in    adverse 
possession,  45. 

of  land,  how  gained,  14. 

of  land,  perpendicular  extent  of. 
49. 

sole    and    unconditional,    of    in- 
sured property,  353. 

transfer  of,  terminates  insurance, 
352. 
Ox,  single,  exempt  from  execution 
as  yoke  of  oxen,  185. 

Packages,     food,     laws     requiring 
identifjang  marks  upon,  168. 

Pack  freight,  shipper's  duty  prop- 
erly to,  320. 

Packing  musty  under  sound  corn  a 
breach  of  warranty,  276. 

Paid  insurance  not  instantly  can- 
celled, 345. 

Paper,  written  contract  need  not  be 
confined  to  one,  226. 

Parol,   contracts  wholly  or  partly 
oral,  classed  as,  226. 

Part    delivery    and    acceptance    of 
commodity   no   completion   of 
sale,  268. 
performance    of    oral    contracts, 
effect  of,  230. 

Parties  to  illegal  contracts,  the  law 
never  aids,  240. 
to  insurance  contracts,  335. 

Partnership,      growing     crops     on 
shares  no,  181. 

Parts  all  equal  in  contracts,  222. 

Pass,  drover's,  nature  and  function 
of,  333. 

Pasturing    stock    lawfully    subject 
to  poHce  regulation,  202. 

Payment,  due  if  goods  not  ordered 
arc  kept  and  used,  269. 
factor  authorized  to  collect,  289. 
made   under   duress   recoverable 
back,  245. 


Index 


419 


Payment,  Continued 

made  under  mistake  when  recov- 
erable, 247,  248. 
promised  as  soon  as  crop  can  be 

sold,  when  due,  234. 
of  purchase  price  no  validation 

of  oral  sale  of  land,  227. 
voluntarily    made    not    recover- 
able back,  246. 
Peace,    public,    preserved    by    the 

pohce  power,  139. 
Peaceable  possession,   covenant  in 

deed  guaranteeing,  28. 
Peach  trees,   example  of  warranty 
in  the  sale  of,  273. 
lawfully  destroyed  for  the  "Yel- 
lows," 145. 
Pease,  probably  covered  by  insur- 
ance of  grain,  346. 
seed,  example  of  warranty  in  sale 
of,  274. 
Pennsylvania,    doctrine    in,    as    to 
navigable  streams,  96. 
farm  tenants'  right  in,  to  "way 

going  crop,"  179. 
farmers  in,   exemptions  from  li- 
censes and  taxes,  11. 
law    in,    act    of    God    following 

carrier's  delay,  307. 
unreaped  grain  classed  as  emble- 
ments in,  175. 
Pens,  stock,  carriers  bound  to  pro- 
vide safe  terminal,  315. 
Percolating  water  included  in  farm 

waters,  92. 
Perfect,  sale,  no,  without  an  agree- 
ment on  price,  250. 
title  to  land,  what  is  a,  23. 
Performance  of  contracts,  see  Con- 
tracts. 
Perishable,  food,    municipality    no 
power    to     prohibit    sales    of 
wholesome,  155. 
freight,  see  Carriers. 
fruit,  buyer's  redress  after  pay- 
ing for  warranted,  277. 


Person  or  goods,  duress  either  of, 
245. 

Personal,  conduct  governed  by  po- 
lice power,  140. 
contract,     insurance     purely     a, 

338,  352. 
factor's    emplo3Tnent    and    lien 

wholly,  291,  296. 
property,     specific     performance 
rarely    decreed    of     contracts 
concerning,  236. 

Persuading   servant   to   leave,    lia- 
bility for,  90. 

Petroleum   underlying   farm,    own- 
ership of,  51. 

Pier,  right  to  build,  between  high 
and  low  water  marks,  102. 

Pigs  within  statutes  about  hogs  or 
swine,  184. 

Pipe,  water,  an  easement,  79. 

Plain,  factor's   instructions   should 
be,  294. 
language    not    strained    to    con- 
strue insurance  policy,  340. 

Platform,  open,  deliveries  of  freight 
upon,  316. 

Pledge,  factor  not  allowed  to,  con- 
signed property,  289. 

Pledges,    modification   of   common 
law  against  factor's,  290. 

Poisoning  appropriated  water,   in- 
junction against,  123. 
fowls  violates  penal  statute  pro- 
tecting domestic  animals,  189. 
horse,  punishable  as  unlawful  de- 
struction of  property,  189. 

Police  laws,  discriminatory,  uncon- 
stitutional, 141. 
legislature  the  sole  judge  of  the 

need  of,  141. 
suppression    of    animal    diseases 

by,  142. 
unreasonable,   regulating  pastur- 
ing of  stock  invalid,  202. 

Police  powers,  applicable  to  insur- 
ance, 360. 


420 


Index 


Police  powers,  Continued 

limits  of,  140. 

municipal,  149. 

national  pure  food  laws,  not  ex- 
ercises of,  166. 

over  dogs,  209. 

regulate   weights   and   measures, 
162. 

state,  139. 
Policies  of  insurance,  see  Insurance. 
Policy-holders,  assessable  in  co-op- 
erative insurance,  363. 

bound  to  comply  with  terms  of 
policies,  339. 

charged  with  knowledge  of  con- 
tents of  policies,  339. 

co-operative,    bound    by    consti- 
tutions and  by-laws,  362. 

insurance   policies   liberally   con- 
strued for,  340. 

members    of    co-operative    com- 
panies, 361. 

names  for  persons  insured,  335. 

relations  of,  to  each  other,  359. 

right  of,  to  clear  away  debris  after 
a  fire,  356. 

should  always  read  their  policies, 
339. 
Policy,   public,   contracts   contrary 
to,  void,  239. 

defined  in  respect  of  contracts, 
240. 

requires  diligence  of  carriers,  302. 
Polluting  springs  and  wells,  liabil- 
ity for,  108. 

stream,  riparian  owner  bound  to 
refrain  from,  101. 
Pond,  included  in  waters  of  farm,  91. 

not  so  named  from  area,  93. 

shore  title  runs  to  middle  of,  63. 

unguarded  near  highway,  liabil- 
ity for  drownings  in,  110. 
Ponderous  articles  sold,  delivery  of, 

262. 
Pool  without  outlet  filled  by  raid, 
surface  water,  103. 


Popular  language  of  insurance  pol- 
icy, 340. 
meanings   ascribed   to   words   in 
untechnical  contracts,  222. 
Pork,  embraced  by  statutes  about 

hogs  or  swine,  184. 
Positive  evidence  of  fraud  not  in- 
sisted upon, 243. 
Possession,  advantages  of,  38. 
change  of,   one  meaning   of  de- 
livery of  goods  sold,  261. 
evidence  of  ownership,  39. 
factor's  lion  lost  by  surrendering, 

296. 
farmer  in,  37. 

notice  of  occupant's  rights,  39. 
of  chattel,  right  to  keep  to  secure 

lien  for  labor,  89. 
of  covenant  in  deed  guaranteeing 

peaceable,  28. 
of  deed,  presumption  from,  17. 
of  land,  actual  and  constructive, 

37. 
property  to  seU  mark  of  the  fac- 
tor, 287. 
yielded   only   to   superior    right, 
38. 
Possessor  of  land  owns  harvested 

crops,  177. 
Possessory  right  to  land  sufficient 

to  appropriate  water,  125. 
Posting  notice  of  appropriation  of 

water,  117. 
Potato  digger,  example  of  implied 

warranty  in  sale  of,  272. 
Potatoes,  perishable  freight,  332. 
sold  as  "good"  warranted  sound 

and  merchantable,  276. 
sold   to   retail   grocer   warranted 
sound,  276. 
Power,  of  destroying  private  prop- 
erty, 144. 
of  government  over  waters  never 

lost,  102. 
of  legislatur(>  in   chartering  irri* 
gation  company,  134. 


Index 


421 


Power,  Continued 

of  state  to  abrogate  common  law, 

116. 
water,  land  includes,  51. 
water  for,  riparian  owner's  right 
to  use,  102. 
Practice,     wise,     in     selling     from 

masses,  258. 
Precaution  should  be  taken  against 

frightening  horses,  197. 
Prefer    perishable    freight,    carrier 
bound  to,  323. 
old    consumers    over    new,    irri- 
gation company  bound  to,  136. 
Preliminary  oral  agreements  merge 
in  final  written  contracts,  221. 
Premises,     insured,     when    vacant 

and  unoccupied,  350. 
Premium,  see  Insurance. 
Prescription,  devolution  of  land,  by, 
18. 
right  of  way  may  be  gained  by, 

74. 
right  of  way  for  irrigating  ditch 

by,  124. 
title  to  land  by,  19. 
title  to  land  by,  marketable,  20. 
preservatives,    in    dairy    products, 
laws  concerning,  166. 
state  may  forbid  addition  of,  to 
milk,  162. 
press,  cider  or  cotton,  not  a  fixture, 

72. 
Presumed,  fraud  is  never,  243. 
grant  of  way  of  necessity  is,  77. 
honesty  and  innocence  are,  243. 
negligence,    when   freight   is    not 
delivered,  318,  319. 
Presumption,  conclusive  that   con- 
tract   voluntarily    signed    was 
read  and  understood,  236. 
from  possession  of  deed,  17. 
that  contracting  persons  intended 
a  lawful  agreement,  222. 
Prevent,  act  of  God  impossible  to, 
303. 


Preventable,  only,  injuries  by  domes- 
tic animals  entail  liability,  193. 
Price,    agreement   upon,    necessary 
to  perfect  a  sale,  250. 
factor's  duty  to  collect,  promptly, 

289. 
factor's  duty  to  obtain  the  highest 

procurable,  291. 
inadequate,  no  reason  for  annul- 
ling fair  sale,  237. 
sound,  as  an  implied  warranty  of 
soundness,  273. 
Prices,    contracts   to   control,    void 

by  public  policy,  240. 
Principle,  of   average  underlies   all 
insurance,  359. 
Chancellor    Kent's  fundamental, 

of  the  law  of  sales,  255. 
elementary,  applying  to  sales  and 
exchanges,  254. 
Principles  alike  in  all  insurance,  335. 
Print,  writing  prevails  over,  when 
repugnant  in  contracts,  223. 
writing  prevails  over,  in  insurance 
policies,  340. 
Priority,  of   chattel  mortgage  over 
agister's  lien.  202. 
of  right  to  appropriated  water  de- 
termined by  order  of  diversion, 
122. 
of  title  to  growing  crops  of  pur- 
chaser at  foreclosure  sale,  172. 
Private  streams,  95. 

use,  water  for  irrigation,  when  a, 
130. 
Privilege,    exclusive,    of    collecting 
garbage,  valid,  153. 
exclusive,   given  by   carrier,   un- 
lawful, 302. 
in  land  without  profit,  easement 

a,  66. 
none    to    cattle    to    trespass    on 
open  land,  198. 
Privity  in  estate,  32. 
Proceeds  of  sales  by  factors,   con- 
signors' title  to,  298. 


422 


Index 


Process  butter,  169. 

Products,    farm,    when   subject   to 

lien  for  wages,  87. 
Profits,  factors',  by  sales  to  them- 
selves   belong    to    their    con- 
signors, 295. 
Progeny  of  domestic  animals,  202. 

chattel  mortgage  lien  on,  203. 
Promise,  agents'  to  renew  insurance 
unperformed,  344. 
gratuitous,  unenforceable,  220. 
never  implied  without  a  duty,  218. 
of  payment   of  price   considera- 
tion for  sale,  251. 
Prompt,     carrier     should     be,     to 

forward  freight,  316. 
Proof,   burden  of,   of  invalidity  of 
contract,  237. 
mode    of,    express    distinguished 
from  implied  contracts  by,  218. 
oral,  received  of  mistake  in  mak- 
ing contract,  248. 
Proofs  of  loss,  see  Insurance. 
Property,  destroyed  as  nuisance,  no 
compensation  for,  143. 
dogs  as,  208. 
effect  of  chattel  mortgage  on  title 

to,  203. 
location  of  insured,  347. 
private,    use    of,    regulated    by 

police  power,  140. 
rights  not  invaded  by  interdict- 
ing cruelty  to  animals,  188. 
summary  destruction  of,  inimical 

to  public  welfare,  144. 
transfer  of,  for  a  price,  essence 

of  a  sale,  250. 
unlawfully    withholding,    duress, 
246. 
Prosperity,    general,    promoted    by 

police  power,  140. 
Protection  of  the  laws  essential  to 

liberty,  5. 
Protest   unavailing   if   payment   is 

voluntary,  246. 
Proved,  alleged  fraud  must  be,  243. 


part    performance    of   oral    co& 

tracts,  how,  231. 
Provisions,  chief,  in  the  statute  of 

frauds,  224,  225. 
fraud  in  sales  of,  state  power  to 

penalize,  164. 
Public,  bound  by  reasonable  rules  of 

carriers,  326. 
enemy,  see  Carriers, 
health,  animal  registration  in  the 

interest  of,  186. 
interest,    insurance    business    af- 
fected by  a,  360. 
irrigation  districts,  132. 
lands,  appropriating  springs  on, 

128. 
lands,      irrigation      ditches     on, 

ownership  of,  127. 
markets  in  municipalities,  154. 
officers,  see  Officers, 
ownership    of    irrigation    works, 

132. 
policy,  see  Policy,  public, 
service,     irrigation     corporations 

charged  with,  135. 
streams,  95. 
Pumping    for    irrigation,    riparian 

right  of,  114. 
Punctuation    aids    in     elucidating 

obscure  contract,  222. 
Purchase,  agent  to  sell  not  allowed 

to,  294. 
Purchased    property,    risk    of    loss 

goes  with  title  to,  258. 
Purchaser,    of     diseased     animals, 

redress  of,  194. 
of  factor  when  liable  to  consignor, 

299. 
of  land,  right  of,  to  marketable 

title,  23. 
not  deceived  or  warranted  must 

look  out  for  himself,  283. 
Purchaser's   implied   license   to   go 

and  take  his  purchase,  81. 
insurable  interest  in  property  not 

paid  for,  352. 


Index 


423 


Pure  food  laws,  164. 

milk  laws  constitutional,  157. 
Pursuit,  lawful  of  animals  escaping 
from  highway,  199. 

of  legal  remedies,  5. 

Quality,     statutes    prescribing,     of 
milk    for    sale,    constitutional, 
.     160. 

Quantities,    sale    of    indefinite,    of 
goods,  259. 

Quantity,  actually  needed  limits 
appropriation  of  water  for  irri- 
gating, 120. 
of  land  described  in  deed  con- 
trolled by  the  lines,  54. 
delivery  of  large,  of  bulky  or 
heavy  goods  sold,  262. 

Quarantine  and  inspection  laws,  141. 

Quiet  enjoyment,  covenant  in  deed 
assuring,  28. 

Quit-claim  deed,  effect  and  function 
of,  26. 

Quitting  work,  when  farm  laborer 
is  justified  in,  85. 

Railroad,   covenant  to  fence  right 
of  way  of,  runs  with  land,  32. 
Rape  seed,  liability  for  selling  wild 
mustard  seed  in  place  of,  274. 
Rates,  carrier's  must  be  reasonable, 
302. 
of  irrigation  companies,  135. 
reduced     freight,     consideration 
for  limited  liability,  328. 
Ratifying    illegal    contract    impos- 
sible, 240. 
when  sober  contract  made  while 
drunk,  220. 
Reason,  life  of  the  law,  3. 

performance    of    void     contract 
may  be  refused  without,  237. 
Reasonable    time    determined    by 
various  considerations,  233. 
use  of  water  to  irrigate  a  ques- 
tion of  degree,  113,  114. 


Rebates  by  carriers  unlawful,  302. 
Receiver  of  insolvent  co-operative 
insurance  company  may  assess 
policy-holders,  363. 
Receipt,  bill  of  lading  a,  329. 

premium,  evidence  of  insurance, 

337. 
purchase   price,    when,   validates 

oral  sale  of  land,  227. 
warehouse,    effect   of   delivering, 
265. 
Receipts    usually    not    conclusive, 

329. 
Reckless  misleading  statement  ig- 

norantly  made  a  fraud,  244. 
Recognizing  boundary  lines,  53. 
earliest  decision,  right  to  stop  in 
transitu,  267. 
Recorded,    agreement  to   farm   on 
shares  should  be,  91. 
conveyance     of     growing     fruit 

should  be,  173. 
grants  of  easements  should   be, 
68. 
Recording  deed,  implication  from, 
17. 
notice  of  appropriation  of  water 
for  irrigation,  117. 
Recourse,  buyer's,  breach  of  war- 
ranty after  paying  for  perish- 
able fruit,  277. 
Reforming    contract    for    mistake, 
247. 
insurance  policy  respecting  loca- 
tion of  property,  347. 
Refrigerator  cars,  see  Carriers. 
Refusal,    demand    and,    proof    of 
conversion,  293. 
to  perform  void  contract  needs 
no  excuse,  237. 
Registration,  of  animals,  186. 

of      docked      horses,      Colorado 

statute,  187. 
of  dogs,  Delaware  statute,  208. 
of  milch  cows,  Maryland  statute, 
186. 


424 


Index 


Registration,  Continued 

of  stallions,  statutes  of  Maine  and 
Kentucky,  187,  188. 
Regulations,  carriers'  right  to  make 
reasonable,  325. 
of  irrigation  companies  must  be 

reasonable,  135. 
police,  of  commission  merchants 

and  business,  299. 
police,  of  stock  pasturing  void  if 
unreasonable,  202. 
Rejecting,    conditionally    accepting 
offer  to  sell  equivalent  to,  254. 
Relations  of  contractors  aid  inter- 
pretation of  contracts,  223. 
Reliction,    definition    and    charac- 
teristics of,  21,  22. 
Relied  upon,   false  representations 
must  have  been,  to  avoid  con- 
tracts, 244. 
Relief   always   given    against    con- 
tracts got  by  fraud,  242. 
given  for  mistake  only  when  error 
was  material,  247. 
Remedy,   legal,   buyer's  refusal  to 
take  property  sold,  269. 
legal,  damage  without  wrong  has 

no,  5. 
legal,  defined,  5. 

legal,  every  legal  wrong  has  a,  4. 
legal,  none  for  what  is  itself  ille- 
gal, 4. 
legal,  none  when  unsound  property 
is  bought  without  deceit  or  war- 
ranty, 284. 
legal, wrongfully  refusing  license  to 

collect  garbage,  154. 

legal,  wrong  without  damage  has 

no,  5. 

Removing    goods    purchased     not 

essential  to  complete  sale,  262. 

Renovated   butter,    restrictions   on 

selling,  169. 
Rent,  lien  on  farm  products  for,  180. 
Repair    right    of    way,    whose    the 
duty  to,  75. 


Representation  not  always  a  war- 
ranty but  warranty  always  a 
representation,  271. 
Reputation,    dog's    bad,    may    be 
proved  against  its  master,  211. 
Request    of    carrier    for    cars    "at 

once"  sufficient,  312. 
Requisites  in  delivering  goods  sold, 

262. 
Rescind,     power     to,     prevents     a 
decree  for  specific  performance 
of  contract,  235. 
Reservations     and     exceptions     in 

deeds,  34,  35. 
Restrictions,  on  disposal  of  surface 
water,  105. 
on  increasing  hazard  of  insurance, 

348. 
on  right  to  harvest  ice,  109. 
on    riparian    right    to    irrigate, 
113. 
Returning,    damaged    property  re- 
ceived sound  by  factor,  293. 
tendering  or,  consideration  condi- 
tion of  avoiding  contract,  236. 
Rice,  probably    covered    by   insur- 
ance on  grain,  346. 
seed,    example    of    warranty    in 
selling,  274. 
Right  of  way,  see  Way,  right  of. 
Rioters  not  classed  as  the  public 

enemy,  308. 
Riparian  access,  damages  for  cut- 
ting off,  102. 
derivation   and   meaning   of   the 

word,  99. 
duty  not  to  pollute  stream,  101. 
land  alone  irrigable  by  the  com- 
mon law,  125. 
land,  area  of,  entitled  to  irriga- 
tion, 115. 
land,  damage  to,  by  floated  logs, 

98. 
land,  limited  to  water-shed,  99. 
littoral    and,    words    used    indis- 
criminately, 99 


Index 


425 


Riparian  access,  Continued 

proprietors     equal     in     right     to 
irrigate,  114. 

right  of  access  to  stream,  102. 

right  to  bathe  in  stream,  101. 

right  to  harvest  ice  on  private 
stream,  109 

right  to  irrigate,  112. 

right  to  natural  flow  of  stream, 
100. 

right  to  pump  water  for  irrigat- 
ing, 141. 

right  to  wharves,  102. 

use  of  water  for  domestic,  agri- 
cultural,   and     manufacturing 
purposes,  100. 
Risk,  of  loss  follows  title  to  property 
bought  and  sold,  258. 

run  by  leaving  horse  unhitched 
alone  in  street,  196. 

shipper's,  some  freight    may  be 
refused  except  at,  330. 
River  bank  boundary  of  a  farm,  49. 

banks,  but  no  shores  to  a,  63. 

ownership  of  land  under  a,  93. 

size  does  not  make   a  stream  a, 
94. 
Road    roller,    example    of    implied 

warranty  in  selling,  283. 
Rule,  ancient,  now  modified  as  to 
landowner's  duty  toward  tres- 
passers, 199. 

cardinal,     for     construing     con- 
tracts, 221. 

carrier's,  as  to  icing  and  ventilat- 
ing cars,  324. 

exception  to,  that  carrier  is  an 
insurer,  331. 

exception  to,  that  factor's  pledge 
is  void,  290. 

exception  to,  that  owner  of  dam 
owns  her  offspring,  202. 

exception  to,  that  surface  water 
is  a  common  enemy,  104. 

for  determining  when  title  passes 
by  a  sale,  252 


of  damage  on  breach  of  warranty' 

of  seed,  275. 
without  exception,  that  contracts 

violating    law    are    absolutelv 

void,  239. 
Rules,    carriers'    right      to      make 

reasonable,  325. 
for  construing  insurance  policies, 

340. 
for  running  boundary  lines,  54. 
of  courts,  statute  law,  2. 
of     irrigation     companies     must 

conform  to  law,  135. 
Running,  at  large,  see  Animals. 

with  land,  covenants,  32. 
Rye  covered  by  insurance  of  grain, 

346. 

Safety,    public,    conserved    by   the 

police  power,  139. 
public     requires    care    and    dili- 
gence of   carriers,  302. 
Sag-holes,   drainage  and  filling  of, 

106. 
Sales,  249. 

bills  of,  indicia  of  deliveries,  263. 
breeding  animals,  warranties  in, 

of,  282. 
Chancellor    Kent's    fundamental 

principle  in,  255. 
completed  by  deliveries,  261. 
completing,    by    count,    measure 

or  weight,  255. 
defined,  250. 

distinguished  from  bailments,  251. 
effect  of  buyer's  accepting  goods, 

268. 
elementary    principle    applicable 

to,  254. 
estovers,  waste  to  make,  of,  182. 
executory  and  executed,  251. 
factor's,    subject    to    consignors' 

control,  292. 
factor's,  to  themselves,  294. 
farm  implements  and  machines, 

warranties  in,  283. 


426 


Index 


Sales,  Continued 

food,  for  animals,  warranties  in, 

278. 
food,  regulation  of  in  municipali- 
ties, 154. 
grasses  growing  wild,  should  be 

in  writing,  227. 
horses,  examples  of  warranties  in. 

280,  281. 
horses,  and  other  animals,  war- 
ranties in,  279. 
inadequate  prices  no  reason  for 

annulling  fair,  237. 
indefinite  quantities  of  goods,  259. 
innocent,    of    diseased    animals, 

278. 
land,    imply    covenants   to   give 

good  titles,  23. 
live-stock,  263. 
milk    from    unsanitary    premises 

lawfully  forbidden,  157. 
offers     of,     not     binding     until 

accepted,  253. 
oral,  of   real  property,  not   vali- 
dated by  paying  price,  227. 
out  of  masses,  254. 
out   of   masses,    the    "American 

doctrine,"  256. 
part   deliveries   and   acceptances 

do  not  finish,  268. 
regulating     milk,     according    to 

conditions  of  production,  157. 
rule    to    determine    when    title 

passes  by,  252. 
standing    timber,    should    be    in 

writing,  227. 
Btate  of  the  law  of,  249. 
summary,  of  impounded  beasts, 

constitutionality  of,  191. 
validity  of,  of  impounded  beasts 

depends  on  strictly  complying 

with  law,  190. 
warranty  in,  animals,  279. 
warranty  in,  defined,  271. 
warranty  in,  express,  may  always 

be  exacted,  284. 


warranty    in,    express,    survives 

acceptance  and  use,  284. 
warranty   in,    seed   and   nursery 

stock,  273. 
when  seller  may  choose  time  for 

deliveries,  233. 
wholesome  food  by  its  own  name 

not  prohibitable,  165. 
wiser  practice  in  making,  out  of 
masses,  258. 
Salt    water,    carrier's    liability    for 

admitting,  to  stock  pens,  315. 
Samples  of  milk,  officers  may  law- 
fully take  for  testing,  without 
payment,  159. 
Sanitation  promoted  by  the  police 

power,  140. 
Sashes,  window,  fixtures,  70. 
Sawdust,    injunction   against   clog- 
ging irrigation  ditch  by,  123. 
Saw-mill,  portable,  no  fixture,  72. 
Saw-rig,  no  fixture,  72. 
Scab,  contagious  disease  of  sheep, 

142. 
Scabby  sheep,  owner  may  keep,  on 
his  own  land,  without  liability, 
194. 
Sea,  arm  of,  tide  ebbs  and  flows  in,  93. 
inlet  of,  no  water-course,  94. 
lake  and,  shore,  defined,  63. 
ownership  of  land  under,  93. 
shore  boundary  of  farm,  49. 
Sealed  contracts,  oral  cancellation 
or  change  of,  231. 
instrument,     oral     authority    to 
alter,  232. 
Seeds,   all   food,   probably  covered 
by  insurance  of  grain,  346. 
and  nursery  stock,  warranties  in 
sales  of,  273. 
Seisin,  covenant  of,  in  deed,  breach 

of,  31. 
Sell,  agent  to,  not  allowed  to  buy, 

294. 
Selling    diseased    animals,    liability 
for  damages  for,  194. 


Index 


427 


Selling  diseased  animals,  Continued 
diseased   steer   to    butcher,    pun- 
ished, 195. 
horse  with  glanders,  liability  for, 

195. 
insured   property   cancels   insur- 
ance, 352. 

Sense,  double  legal,  of  delivery  of 
goods  sold,  261. 
popular,  accorded  to  language  of 
untechnical  contracts,  222. 

Separation  indispensable  in  sales  of 
property  from  masses,  255. 

Servants,  English  classification  of, 
not    followed    in    the    United 
States,  82. 
household,     have    no    liens    for 
wages  on  farm  products,  88. 
liens  of  farm,  on  farm  produce, 
87. 
right  of,  to  wages,  86. 

Service  of  spring  water,  when  ap- 
purtenant, 78. 

Services,  compensation  for  farm 
laborers',  when  wages  are  not 
agreed  upon,  86. 

Servient  tenement,  one  subject  to 
an  easement,  67. 

Servitude,  appurtenant  easement  a, 
68. 
an  encumbrance  on  land,  29. 

Set-off,  policy-holder  has  no  right 
of,  against  assessment,  366. 

Severing  crops  from  the  soil,  effect 
of,  177. 

Sewage,  discharging,  into  stream,  a 
nuisance,  101. 

Shallow,  lake  may  be  too,  for  na\a- 
gation,  93. 
stream  may  be,  in  places  and  still 
be  navigable,  96. 

Shares,    nature    of    agreement    to 
farm  on,  90,  181. 

Shaving  horse's  mane  and  tail 
punishable  as  malicious  dis- 
figurement, 188. 


Sheep,  delivery  of,  sold,  264. 

dipping,     law      unconstitutional 

when  discriminatory,  141. 
inspector  liable  for  using  injurious 

materials  in  dipping  sheep,  147, 
-killing  dogs,  214. 
scabby,  owner  of,  not  liable  for 

keeping  in  own  field,  194. 
-worrying  dog  lawfully  killed  as 

a  nuisance,  215. 
Shingle  mill  not  a  fixture,  72. 
Shippers,  bound  by  bills  of  lading 

read  or  unread,  330. 
concluded    by    stating   value    of 

freight,  331. 
contracts  exempting  carriers  ex- 
torted from,  void,  328. 
duty  of,  to  pack  freight  properly, 

320. 
duty    f,  to  give  value  of  freight 

on  demand,  330. 
entitled  to  equal  treatment  from 

carriers,  302. 
faults,  carriers  not  liable  for  loss 

or  damage  by,  320. 
ignorantly  accepting  unsafe  cars 

no  excuse  to  carriers,  314. 
needing  cars  must  give  carriers 

timely  notice,  311. 
need  not  waive  their  legal  rights, 

310. 
not  obliged  to  insure  freight  for 

carriers,  331. 
risk,    carriers   may   refuse   some 

freight  except  at,  330. 
travehng  in  charge  of  live-stock 

are  passengers,  333. 
Shippers,  see  also  Carriers. 
Shipping  contract  a  mode  of  limit- 
ing carriers  liability,  325. 
Shoal,  uncharted,  in  the  ocean,  act 

of  God,  303. 
Shoats  embraced  in  statutes  about 

hogs  or  swine,  184. 
Shore,  river  has  no,  63. 
sea  or  lake,  defined,  63. 


428 


Index 


short,   reasonable    timo   somptimes 

very,  233. 
Shower  hogs,  carrier's  duty  to,  321. 
of  rain  not  classed  as  act  of  God, 

305. 
Shrubs,  land  includes  growing,  50. 
Signature   to   deed   may   be  orally 

proved  a  forgery,  26. 
by  mark  good,  220. 
single,    sometimes    sufficient    to 

contract,  220. 
Signed,   contract  voluntarily,   con- 
clusively   presumed    to    have 

been     read     understandingly, 

236. 
Silence  a  fraud  when  speech  is  a 

duty,  244. 
no    fraud    without    a    duty    to 

speak,  245. 
Size  does  not  make  a  stream  a  river, 

94. 
Skimmed    milk,    meaning    of    the 

term,  in  statutes,  161. 
Sky,  land  is  owned  upward  to  the, 

49. 
Slop-fed  cows,  ban  on  sale  of  milk 

from,  157. 
Slough  no  water-course,  94. 
Small  consideration  sufficient,  221. 
deficit  or  surplus  only,   covered 

by  "  more  or  less,"  50,  259. 
Snow  storm,   great,   classed   as  act 

of  God,  305. 
Sole  and  unconditional   ownership 

of  insured  property,  353. 
Sound,    fruit    sold    ungrown    war- 
ranted, 276. 
potatoes  sold  to  grocer  warranted, 

276. 
rule  that,  price  is  a  warranty  of 

soundness,  273. 
Source,  distinct  from   mouth  in   a 

water-course,  94. 
every,  of  information,  must  have 

been  availed  of  to  avoid  con- 
tract for  mistake,  247. 


South   Carolina,   sale  for   a   sound 
price  a  warranty  of  soundness 
in,  273. 
Sows  embraced  by  statutes  about 

hogs  or  swine,  184. 
Specific  performance  of  contracts, 

compelling,  234. 
Specifying    particular    goods    sold 

indispensable  in  sales,  255. 
Spring,  grant  of,  no  implied  grant 
of  waters  feeding  it,  109. 
on  public  lands,  appropriation  of, 

128. 
when  an  appurtenance,  78. 
Squatter,  adverse  possession  by,  43. 
Stacks,  insurance  on  grain  in,  347. 
Stallion,  death  of  warranted,  dui- 
ing  trial  by  purchaser,  286. 
exhibition  of,  in  public  street,  or, 
kept  standing  in  view  of  dwell- 
ing a  nuisance,  151. 
right  to  return  warranted,  282. 
service  of,  when  fees  for,  may  not 

be  recovered,  187. 
used  for  breeding,  when  exempt 

from  execution,  186. 
used  for  farm  work  exempt  as  a 
work  horse,  185. 
Stallions,    Kentucky    statute    con- 
cerning, 188. 
Maine    statute    requiring    regis- 
tration of,  187. 
Standards,    of     measuring     appro- 
priated water,  137. 
of  quality  of  milk  on  sale,  statutes 

prescribing,  160. 
of  weights  and  measures,  statutes 
prescribing,  162. 
Standing  timber,  see  Timber,  stand- 
ing, and  Trees. 
State  control  of  insurance,  360. 
control  of  irrigation,  130. 
ignorance  of  the  law  of  another, 

an  excuse,  248. 
legislation  concerning  pure  food, 
167.      • 


Index 


429 


State  control  jf  insurance,  Continued 

may  forbid  sales  of  milk  to  which 
has  been  added  anything, 
162. 

power  to  abrogate  the  common 
law,  116. 

the  trustee  by  the  civil  law  of 
natural  streams,  128. 
Stations  for  freight  and   cars,   see 

Carriers. 
Statute,    of    Frauds,    sec    Frauds, 
statute  of. 

of   Limitations,   see   Limitations, 
statute  of. 
Statutes,    contracts    contravening, 
nullities,  2.39. 

creating  irrigation  districts  con- 
stitutional, 132. 

exempting  animals  from  exe- 
cution liberally  inclusive,  184. 

express  the  will  of  a  sovereign 
state,  2. 

followed  strictly  in  appropriat- 
ing water,  118. 

parts  of  contracts  made  where 
they  are  in  force,  223. 

penal,  against  cruelty  to  animals 
general,  118. 

penal,  against  selling  flesh  of 
diseased  animals,  195. 

penal,  concerning  animals  con- 
strued narrowly,  184. 

regulating  irrigation  construed 
liberally,  131. 

requiring  carriers  to  take  freight 
embody  common  law,  310. 

written  law,  2. 
Stealing,  by  commission  merchant, 
294. 

crude  terpentine  from  trees  lar- 
ceny, 177. 

dog  larceny,  208. 

real    property   trespass   not   lar- 
ceny, 177. 
Steers,   unbroken,   exempt  as  yoke 
of  oxen  from  execution,  185. 


Stock,  live-,  see  Animals,  Carriers, 

and  Sales. 
Stock-raising  a  farmer's  privilege,  8. 
Stolen  horse  left  tied  in  highway 

no  estray,  190. 
Stoppage  in  transitu,  267. 
Storage,   goods  in,    transferred   by 

delivering    warehouse    receipt, 

265. 
Storm,  an  act  of  God,  303, 
Stray  animals,  see  Animals. 
Straw  grown  on  rented  farm  during 

tenancy  belongs  to  tenant,  180. 
Stream,  banks  of,  which  are  right 

and  left,  63. 
capable  of  floating  logs  public,  97. 
capacity    of,     in     normal    state 

measures  public  right,  97. 
channel  of,  defined,  95. 
channel  of,  as  a  boundary,  62. 
courts   differ    as   to    when    a,   is 

navigable,  95,  96. 
floatable,  defined,  97. 
floating  logs  in,  when  extra  high 

does  not  make  it  navigable,  98. 
included  in  farm  waters,  92. 
log-driver     using     banks     of,     a 

trespasser,  98. 
natural,    public   under   the   civil 

law,  128. 
navigable,   agister  not  bound  to 

fence  along,  201. 
navigable,  artificial  works  making, 

entitle,  riparian  owners  to  com- 
pensation, 97. 
overflow  of,   by  freshet,  surface 

water,  103. 
ownership  of  ice  formed  on,  108. 
polluting,  by  riparian  proprietor 

unlawful,  101. 
riparian,    harvesting    ice    should 

not  diminish,  109. 
riparian,    irrigation    should     not 

diminish,   113. 
riparian  owner's  right  to  bathe 

in,  101. 


430 


Index 


Stream,  Continued 

riparian  owner's  right  to  natural 

flow  of,  100. 
sewage    discharged    into,   a  nui- 
sance, 101. 
shallows  and   occasional  dryness 
do  not  impair  navigability  of, 
96. 
size  of,  alone  does  not  make  a 

river,  94. 
thread  of,  as  a  farm  boundary,  48. 
trespass  to  fasten  log-booms  to 

trees  on  bank  of,  98. 
underground,    polluting,    unlaw- 
ful, 108. 
underground,   rights   and   duties 

concerning,  107. 
volume  of,  does  not  affect  it  as  a 

water-course,  94. 
water-course  a  living,  94. 
when  waters  of,  may  be  held  back 
and  loosed,  98. 
Streets,  animals  at  large  in  city,  151. 
Strikes,  see  Carriers, 
Structures  dangerous  to  trespassing 

animals,  liability  for,  200. 
Subject,    identifjdng,  indispensable 
in  a  sale,  251. 
-matter  essential    in    insurance, 

335. 
mutual   mistake   as  to,   fatal  to 

contract,  247. 
reflected  in  language  of  contract, 
222. 
Substituted,     doctrine     of     appro- 
priation of  water,  for  common 
law  riparian  right,  116. 
Substitution  of  one  for  another  ir- 
rigated tract,  126. 
Suits,  see  Actions. 

Summary  sales  of  impounded  ani- 
mals, constitutionality  of,  191. 
Sunday  labor  ordinarily  limited  to 
caring  for  stock,  85. 
law,  shipper's  purpose  to  violate, 
no  excuse  for  carrier,  312. 


rule,  when  last  day  to  do  an  act 
falls  on,  354. 

Superhuman,  act  of  God,  always, 
303. 

Superior  right  required  to  eject 
possessor  of  land,  38. 

Superseded,  written  by  oral  agree- 
ments with  new  considera- 
tions, 232. 

Supplies  furnished  farm  tenant, 
landlord's  lien  for,  180. 

Suppressing  facts  which  should  be 
disclosed  a  fraud,  244. 

Surety,  landlord  has  no  lien  for 
becoming  tenant's,  181. 

Surface   water,  see  Water,  surface. 

Surplus,  allowable  in  sales  of  "more 
or  less"  goods,  259. 
large,    of    land    not    covered    by 

term  "  more  or  less,"  50. 
water  drawn  for  irnn-ation  should 
be  returned,  115. 

Surrendering  chattels  waives  liens, 
89. 

Suspicion  no  justification  for  kill- 
ing dog,  212,  213. 

Swamp  in  water-course  does  not 
affect  it,  94. 

Swine,  see  Animals  and  Hogs. 

Symbolical  delivery  of  goods  sold, 
261,  262. 

Synonymous,  a  factor  and  commis- 
sion merchant,  287. 
representation   and   warranty  in 
insurance  not,  342. 

Tan-bark,  injunction  against  clog- 
ging irrigation  ditch  with,  123. 

Taxation,  exemptions  from,  of  ir- 
rigation ditches,  128. 

Tax,  Federal,  on  filled  cheese,  con- 
stitutionality of,  167. 
Federal,    on    oleomargarine   pre- 
sumably laid  for  revenue,  167. 
lawfully  laid  on  dog  owners  to 
indemnify  sheep  owners,  214. 


Index 


431 


Tax,  Continued 

laws,  application  of,  to  farmers, 

10,  11. 
license,     lawfully     imposed     on 

milkmen,  158. 
power  to,  is  power  to  destroy,  166. 
Taxes,    farmers'    exemptions    from 
local  license,  11. 
license,  municipal  power  to  exact, 

from  hucksters,  154. 
within  covenant  in  deed  against 
encumbrances,  29. 
Taxing  power.  Federal  food  legisla- 
tion, an  exercise  of  the,  160. 
Team    with    drunken    driver    not 

running  at  large,  191. 
Technical       language,       insurance 

policy  not  in,  340. 
Telegrams,    offer    and    acceptance 

by,  make  a  contract,  2.54. 
Telegraph     company     a     common 

carrier  of  messages,  301. 
Tempest,  act  of  God,  303. 
Temporary  insurance,  binding  slip 

a,  337. 
Tenant,  in  common  in  sole  posses- 
sion owns  growing  crops,  173. 
emblements  belong  to  the,  174. 
manure  not  removable  by,  183. 
of  leased  farm  usually  owns  the 

crops,  179. 
owns  natural  ice  formed  on  pri- 
vate water,  109. 
owns    straw  grown  during    ten- 
ancy, 180. 
right  of,  to  estovers,  182. 
Tenants,    in    common,    agreement 
by,  upon  use  of  appropriated 
water,  123. 
In  common,  landlord  and  cropper 
in  crops,  181. 
Tendering  insurance  premium  pre- 
vents    forfeiture,    when,    357. 
returning  or,   consideration  con- 
dition of  release  from  contract, 
228. 


warehouse  receipt  good  offer  of 
stored  grain,  265. 
Tenements,  two  involved  in  every 
easement,  67. 
what   the    word    embraces   in    a 

deed,  27. 
word  adding  strength  to  a  deed,  27. 
Tennessee,    law    in,    act    of    God 
following  carrier's  delay,  307. 
law  in,  chattel   mortgage  lien  on 
progeny    of    mortgaged    live- 
stock, 203. 
law     in,     warranty    in    innocent 
sales  of  diseased  animals,  178. 
Term    contract,    fire   insurance   al- 
ways a,  343. 
Terminal    facilities  for  freight,   see 

Carriers, 
Terminate,    none    decreed    to    per- 
form a  contract  that  he  has  a 
right  to,  235. 
Terms,  factor's  duty  to  sell  on  th« 
best  obtainable,  291. 
of  sale,  assent  of  both  parties  to, 

necessary,  250. 
unchanged   by  renewing  fire  in- 
surance, 343. 
Texas     fever,     contagious     disease 
of  cattle,  142. 
law  in,  chattel  mortgage  lien  on 
progeny    of     mortgaged     live- 
stock, 204. 
Theft,   carrier's  liability  for,   after 
refusing  freight,  311. 
of  dog  larceny,  208. 
of  turpentine  from  trees  larceny, 
177. 
Thieving  dog,  lawful  to  kill  a,  213. 
Thirst,    supreme    natural    right    to 
riparian  water  to  assuage,  119. 
Threats  against  life,  contract  pro- 
cured by,  void,  245. 
Threshing    machines,    examples    of 
implied  warranties  in  sales  of, 
272. 
not  in  use,  insurance  on,  346. 


432 


Index 


Timber,  standing,  land  includes,  51. 

standing,  oral  sale  ol,  invalid,  227. 

Time,  choice  of,  when  seller  has  a, 

to  deliver  after  sale.  233. 
effect    of    accepting    goods    not 

delivered  on,  268. 
how    fixed,    for    delivering    fruit 

trees  sold  for  fall  delivery,  234. 
limitation    of,    for   suing   on    in- 
surance policy,  35S. 
limit   for   fire   insurance   to   run 

essential,  335. 
limit    for    presenting    claims    to 

carriers  lawful,  326. 
limit  for  proving  insurance  loss, 

354. 
limit     for     rejecting     warranted 

article,  295. 
of  performing  contract  when  not 

fixed,  233. 
reasonable,  allowed  to  prove  in- 
surance loss,  355. 
renewed  insurance  runs,  344. 
unreasonably    long,    daily,    farm 

laborer  not  bound  to  work,  85. 
Title    to    goods,    change    of,    one 

meaning  of  delivery  in  sales, 

261. 
consignor's,  sent  factor  and  their 

proceeds,  298. 

crops  grown  on  shares,  181. 
passes  to  buyer  by  executed  sale, 

251. 
purchased  carries  risk  of  loss,  258. 
remains    in    seller   on    executory 

sale,  251. 
rule  for  determining  when,  passes 

by  sale,  252. 
subject   to   a    chattel   mortgage, 

203. 
warranted  by  offering  for  sale,  27 1 . 
Title  to  land,  acquiring,  14. 
by  accession,  20. 
by  adverse  possession,  24. 
by    adverse    possession    market- 
able, 20. 


by  deed,  23. 

by  descent  or  devise,  18. 

by  grant,  14,  15. 

by  limitation  or  prescription,  19. 

by  will,  18. 

buyer's  right  to  a  marketable,  23. 

chains  of,  identity  of  names  and 

persons  in,  15. 
claim  of,   in  adverse  possession, 

43,  45. 
color  of,  in  adverse  possession,  41. 
covenant  to  give  a  good,  implied 

in  selling,  23. 
duty  of  grantor  to  make  good,  23. 
marketable,  24. 
passing,  by  deed,  16. 
purchase  never  decreed  when,  is 

defective,  236. 
what  is  a  perfect,  23. 
location   of   and,    irrigable  land, 
124. 
Tobacco,  not  covered  by  pure  food 
legislation,  164. 
storage  of,  in  insured  barn,  350. 
Tornadoes,  insurance  against,  346. 
Towns,     farmers'     relations     with 

neighboring,  149. 
Tract  irrigated,  substitution  of  one 

for  another,  126. 
Trade,  factor  no  right  to  sell  out  of 
usual  course  of,  290. 
fixtures,  71. 
Transaction,   fraud   vitiates  every, 

242. 
Transfer   of   property   for   a   price 

the  essence  of  a  sale,  250. 
Transferable,    factor's   agency   and 

lien,  not,  291,  296. 
Transferring  warehouse  receipt  com- 
mon mode  of  delivering  goods, 
265. 
Transit     and     transportation,    see 

Carriers. 
Trees,  growing  on  boundary  lines,  59. 
growing  in  highways,  ownership 
of,  00,  61. 


Index 


433 


Trees,  Continued 

growing  shrubbery  and,  included 

in  land,  50. 
growing,  title  to,  passes  only  by  a 

writing,  228. 
measure  of  damage  for  destruc- 
tion of  full  grown,  178. 
warranty    in    selling    peach,    ex- 
ample of,  273. 
Trespass,  crossing  boundary  with- 
out license  a,  53. 
driving  cattle  on  open  land  a,  199. 
excusable,    for   cattle   to   browse 

on  open  land,  198. 
fastening  log  booms  to  trees  on 

river  bank  a,  98. 
not  larceny  to  steal  real  property, 

177. 
unlawful  to  slay  a  dog  for  a  mere, 
212. 
Trespassers,  landowner's  duty  as  to 

injuries  to,  199. 
Trespasses  of  animals,  198. 
Tributary    streams,    appropriation 

of,  for  irrigation,  119. 
Trunk,     constructive     delivery     of 

contents  of,  263. 
Truth,  a  fraud  to  affirm  as,  what 
one  is  ignorant  of,  244. 
shipper's    duty    to    tell    carrier, 
320. 
Tuberculin  test  lawfully  prescribed 

for  kine,  158. 
Tuberculosis     attributed     to     milk 

from  tuberculous  cows,  156. 
Tuberculous       cattle,       municipal 

power  to  destroy,  150. 
Turpentine,    crude,  in    tree  boxes, 

subject  of  larceny,  177. 
Typhoid  fever  epidemics  frequently 
traced  to  contaminated  milk, 
156. 

Uncertain     contract,     performance 
of,  never  decreed,  235. 
exceptions  in  deeds  void,  36. 

2r 


Unconscionable  contract,  perform- 
ance of,  never  decreed,  235. 
Underground  water,  see  Water. 
Understanding    presumed    of    con- 
tract voluntarily  signed,  236. 
Underwriter,  see  Insurance. 
Undisturbed      adverse     possession 
necessary  to   ripen  into  title, 
43. 
Union    of    dominant    and    servient 
estates    extinguishes    way    of 
necessity,  78. 
United  States,  derivation  of  com- 
mon law  in,  3. 
English  classification  of  servants 

not  followed  in  the,  82. 
English  doctrine  of  agricultural 
fixtures   not  accepted  in    the, 
71. 
extent  of  arid  region  in  the,  115. 
freedom  of  contract  a  constitu- 
tional right  in  the,  216. 
gambling  contracts  generally  il- 
legal in  the,  241. 
modification  in  the,   of  common 
law  respecting  keeping  animals 
at  home,  198. 
statute   of   frauds   generally   en- 
acted in  the,  225. 
Supreme     Courts'     doctrine     of 

navigability  of  streams,  96. 
Supreme    Court   on  act  of    God 

following  carrier's  delay,  306. 
taxes  on  oleomargarine  and  filled 
cheese,  167. 
Units    of    measurement    of    appro- 
priated water,  137. 
Unjust    contract,    performance    of, 

never  decreed,  234. 
Unmarketable    title,    purchaser    of 
land  never  decreed  to  take  an, 
236. 
Unoccupied,  see  Insurance. 
Unread  contract  binds  unless  read- 
ing was  fraudulently  prevented, 
236. 


434 


Index 


Unreasonable     contract,     perform- 
ance of,  never  decreed,  234. 
Unwise,     contracts    merely,     never 

annulled,  236. 
Usage,  custom  and,  of  commission 

merchants,  295. 
Use,  actual,  final  test  of  complete 

appropriation  of  water,  118. 
ceasing,  loses  right  to  irrigating 

ditch  on  public  land,  127. 
changing,  of  appropriated  water, 

122. 
changing,    of    insured    property, 

effect  of,  349. 
continuing,  of  warranted  article 

at  seller's  request,  285. 
express    warranty    survives    ac- 
ceptance and,  284. 
horse  warranted  sound,  right  to, 

before  rejecting,  285. 
of  private  property  regulated  by 

the  police  power,  140. 
of  water  for  irrigation  a  public 

use,  128. 
of  water  for  irrigation   when   a 

private  use,  130. 
reasonable,  of  water  to  irrigate  a 

question  of  degree,  113,  114. 
riparian  owner's,  of  water,  100. 
water,   legal  right  to,   termed   a 

water  right,  126. 
Usual   course   of   trade,    factor   no 

right  to  sell  out  of,  290. 

Vacant    and    unoccupied  premises, 

see  Insurance. 
Vague    contract,    performance    of, 

never  decreed,  235. 
Valid,   exclusive  licenses  to  collect 
garbage,  153. 
impossible    to    make    an    illegal 

contract,  240. 
performance    never    decreed     of 
contract  not  legally,  234. 
Validity,  of  oral  contracts,  225. 
of  sale  of  impounded  animals  de- 


pends   on    strictly    complying 
with  law,  190. 

Valuable  consideration  essential  to 
every  contract,  220. 
right  to  make  and  enforce  con- 
tracts, 216. 

Value,  expressing  erroneous  opinion 
of,  no  fraud,  244. 
factor  acting  in  good  faith  may 

sell  below  market,  293. 
shipper  bound  to  state,  of  freight 
on  demand,  320,  330. 

Various  considerations  determine 
what  time  is  reasonable,  233. 

Varying  sealed  contract  orally, 
ancient  rule  against,  obsolete, 
231. 

Vegetable  oil,  artificially  coloring 
of  oleomargarine  with,  167. 

Vegetables,  injury  to,  by  carrying 
in  unsuitable  cars,  313. 
perishable  freight,  332. 

Vendee  in  possession  of  land  owns 
growing  crops,  173. 

Vermont,  law  in,  chattel  mortgage 
lien  or  progeny  of  mortgaged 
live-stock,  204. 
warranty  in  selling  diseased  ani- 
mal for  food,  278. 

Vested  right  in  appropriated  water, 
117. 

Vicious    dog,    duty    of    owner    to 
secure,  210. 
owners'  liability  for  acts  of  ani- 
mals known  to  be,  193. 
runaway  horse,  liability  of  owner 
of,  196. 

Vinegar,  Ohio  statute  against  adul- 
terating, 165. 

Virginia,  law  in,  chattel  mortgage 
lien  on  progeny  of  mortgaged 
live-stock,  203. 

Viticulturist,  farmer  may  call  him- 
self a,  7. 

Void,  contracts  made  in  violation 
of  law  absolutely,  239. 


Index 


435 


Void,  Continued 

contracts,     refusal     to    perform, 

needs  no  excuse,  237. 
contracts,      within      statute      of 

frauds,  performance  of  usually 

not  decreed,  235. 
holder  of,  co-operative  insurance 

policy  not  assessable,  364. 
insurance  without  any  insurable 

interest  is,  351. 
Volume   of   water   does  not   affect 

character  of  water-course,  94. 
Voluntary,    contracts   to   be   valid 

must  be,  219. 
contracts  presumed  conclusively 

to  have  been  read  understand- 

ingly,  236. 
discount    of    unliquidated    claim 

with    knowledge   of   facts   free 

from  duress,  247. 
payments  may  not  be  recovered 

back,  246. 
Vote,  authority  for  issuing  irriga- 
tion district  bonds,  132. 

Wagering    or    gambling    contracts, 

241. 
Wagers   inconsistent   with    interest 

of  society,  241. 
Wages,  farm  laborers',  when  liens 

on  farm  products,  87. 
jockey's,  in  races  not  included  in 

agister's  lien,  202. 
right  to,  to  time  of  discharge,  86. 
Wagon,    example    of    constructive 

deliver^'  on  sale  of,  263. 
Waive,   shipper  may   not   be   com- 
pelled to,  legal  rights,  310. 
Waiver,  may  not  be  recalled,  357. 
oral,  of  scaled  contract,  ancient 

rule,  against  obsolete,  231. 
Waivers  by  underwriters,  356. 
Waiving  lien  for  labor  on  chattel, 

89. 
objections,  when  accepting  goods 

sold  amounts  to,  268. 


Wandering  animal  an  estray,  189. 
Warehouse,    constructive    delivery 
of  contents  of,  263. 
receipts,  effect  of  delivery  of,  265. 
Warehousing  goods  and  surrender- 
ing receipt  extinguishes  factor's 
lien,  296. 
Warrant,     factor     authorized     to, 
property  sold,  289. 
factor's    authority    to,    limited, 
290. 
Warranted,  potatoes  sold  to  grocer, 

sound,  276. 
Warranty,  rule  of  damage  on  breach 

of,  in  selling  seed,  275. 
Warranty  in  deeds,  see  Deeds. 
Warranty    in    insurance,     see    In- 
surance. 
Warranty  in  sales  of  personal  prop- 
erty, see  Sales. 
Waste,     covenant     against,     runs 
with  land,  32. 
cutting  estovers  for  sale,  182. 
riparian    proprietor    should    not 
cast,  into  stream,  101. 
Watch    dog,     owner's   liability    for 

injuries  by  ferocious,  210. 
Water,    appropriating,    for    irriga- 
tion, 117. 
carrier's    dutj^    to    provide,    for 

live-stock  in  transit,  321. 
common   and   equal   property  of 

riparian  owners,  99. 
company,  public,  owns  ice  formed 

over  condemned  land,  108. 
courses  as  boundary  lines,  62. 
courses  defined,  94. 
ground    under,    land    embraces, 

50,  51. 
land  generically  includes,  50. 
natural  rights  of  using  reparian, 

119. 
percolating,    a    part   of   the   soil, 

106. 
pipe,  hidden,  an  apparent  ease- 
ment, 7U. 


436 


Index 


Water,  Continued 

power,  land  includes,  51. 
rights,  conveyances  of,  for  irriga- 
tion, 127. 
rights,    duties    and,  alike    as    to 

underground        and        surface 

streams,  107. 
rights,   priority  of,  under  appro- 
priations, 122. 
rights  of  property,  126. 
rights  taken  for  public  use  must 

be  paid  for,  126. 
service    of,     when    appurtenant, 

78. 
sheet   of,    name  not   determ  ned 

by  area,  93. 
surface,  casual  and  vagrant,  103. 
surface,  collecting  in  basins  and 

discharging  in  floods,  unlawful, 

105. 
surface,  common  enemy  by    the 

common  law,  104. 
surface,  due  to  rains  and  melting 

snow,  103. 
surface,  flow  of,  may  be  guided 

and  quickened,  106. 
surface,  flow  of,  must  be  kept  to 

the  natural  course,  106. 
surface,  flow  of,  to  stream  must 

not  be  obstructed,  106. 
surface,  follows  no  defined  course, 

103. 
surface,  may  be  deflected  without 

liability,  104. 
surface,     modified     doctrine     in 

some  states  of  common  enemy 

theory,  104. 
surface,    must    be    sent    off    by 

direct  route,  105. 
surface,    must    be    turned    into 

drain  or  water-course,  106. 
surface,  origin  of,  102. 
surface,  pond  of,  may  be  drained 

and  filled  up,  105. 
surface,   restrictions   on   disposal 

of,  105. 


surface,  right  to  send,  to  lowet 
land  a  natural  easement,  103. 

surface,  right  to  turn  aside  and 
pass  along,  104. 

surface,  unlawful  to  cut  natural 
barriers  to  change  line  of  flow 
of,  105. 

underground,  needed  by  others 
unlawfully  drawn  to  sell,  107. 

underground,  needed  by  others 
unlawfully  wasted,  107. 

underground,  not  impliedly  con- 
veyed with  spring,  107. 

underground,  percolating  and, 
106. 

underground,  right  to  intercept, 
when  not  a  defined  stream,  106. 

underground,  right  to  tap,  for 
new  well  unrestricted,  107. 

use  of,  by  riparian  owner,  100. 
Waters,    see   also    Lakes,  Streams, 

and  Irrigation. 
Water-shed   the  limit  of    riparian 

land,  99. 
"Way  going  crop"  defined,  179. 
Way  of  necessity,  defined,  76. 

ends  when  the  need  of  it  ceases, 
78. 

follows  title  to  dominant  estate, 
77. 

grant  of,  implied,  77. 

mere  convenience  does  not  create, 
77. 

none  where  there  is  access  other- 
wise, 78. 

right  to  lay  out,  77. 

union  of  dominant  and  servient 
estates  extinguishes,  78. 
Way,  rights  of,  73. 

rights  of,  acquired  by  prescrip- 
tion, 74. 

rights  of,  appurtenances,  73. 

rights  of,  changed  only  by  con- 
sent of  both  landowners,  74. 

rights  of,  condemnation  of,  for 
irrigation  ditches,  130. 


Index 


437 


Way,  Continued 

rights  of,  continuous    use  of    un- 
necessary, 76. 
rights  of,  defined,  73. 
rights  of,  duty  to  keep  up,  75. 
rights   of,  extinguished    by    per- 
manent  closure,  75. 
rights  of,  gates   and   bars  across 

ends  of,  75. 
rights  of,  implied  grants  of,  for 

irrigating  ditches,  124. 
rights    of,  incorporeal    heredita- 
ments, 73. 
rights  of,  inheritable  estates,  74. 
rights  of,  neglect  to  use  no  aban- 
donment of,  76. 
rights  of,  oral  grants  of,  void,  74. 
rights  of,  railroad,  73. 
rights  of,  rest  in  grant,  74. 
rights    of,    use    of,   by    servient 
landowners,  75. 
Weather,  bad,  not  classed  as  act  of 

God,  305. 
Weight,    goods   sold    by,    must   be 
weighed  to  complete  sales,  255. 
Weights    and    measures    regulated 

by  the  police  power,  162. 
Welfare,  popular,  promoted  by  the 
police  power,  139. 
public,   summary  destruction   of 
property  inimical  to  the,  144. 
Well,  farm  waters  include,  92. 
mechanics'  liens  for  sinking,  88. 
right  to  dig,  unrestricted,  107. 
when  appurtenances  within  me- 
chanics' lien  laws,  89. 
Wensleydale,    Lord,   dictum  of,   on 

irrigation  in  England,  112. 
Wharves,   right  to   build,   between 
high- and  low-water  marks,  102. 
Wheat,    covered    by  insurance    on 
grain,  346. 
seed,    principle    of   implied    war- 
ranty in  sale  of,  applied,  274. 
Wholesome,    food   sold   for   human 
consumption,  warranted,  277. 


no  implied   warranty   that   food 

sold  for  animals  is,  279. 
Wife,  husband's  warranty  in  deed  of, 

personal  to  grantee,  33. 

sale  to  factor's,  consignor  may 
repudiate,  295. 
Wild    beasts,    dogs    on    a    higher 

plane  than,  in  law,  206. 
Wild  growing  grasses,  sale  of,  should 

be  in  writing,  227. 
Will,  devising  real  estate  a  grant, 

18. 
overpowered  in  duress,  245. 
Wind,    extraordinary    gale    of,  an 

act  of  God,  306. 
sudden  gust  of,  not  classed  as  act 

of  God,  306. 
Windmill,     example      of     implied 

warranty  in  sale  of,  283. 
Wind-storm,  insurance  against,  246. 
Wisconsin,    animals   sold    to    breed 

from  not  warranted  in,  282. 
statute  of,  for  compensation  for 

dr'ving  logs  by  necessity,  99. 
Withdrawal,    policy-holder's,    from 

co-operative     insurance     com- 
pany, effect  of,  364. 
Withdrawn,   offer  to  sell   may   be, 

before  acceptance,  253. 
Wood,  H.    G.,  on   Fire   Insurance, 

cited,  3.34,  338,  346. 
on  Master  and  Servant,  cited,  82, 

84,  85,  90. 
Words,  form  of,  no  special,  rc(|uired 

for  a  warranty,  271. 
given    popular    meanings  in    un- 

technical  contracts,  222. 
govern  punctuation  in  contracts, 

222. 
Work  horses,  livery  horses  exempt 

as,  and  carriage,  horses  not  so 

from  execution,  185. 
Works,  character  of  irrigation,  121. 
Worthlcssness      of      property      de- 
stroyed no  defense  to  suit  for 

its  value,  148. 


43S 


Index 


Wrong,    legal    remedy    for    every 

legal.  4. 
side  of  road,  liability  for  collision 

when  driving  on,  197. 
without  damage  remediless,  5. 

Yards,  stock,  carriers  bound  to 
provide  safe  terminal,  315. 

Year,  oral  contracts  impossible 
to  perform  within  a,  void,  228. 


Yellows,  peach  trees  attacked  by 
the,  lawfully  destroyed,  145. 

Yoke  of  oxen,  exemption  of,  from 
execution,  extends  to  single  ox 
and  a  pair  of  unbroken  steers, 
185. 

Young,    of    animals,  belong  to   the 
owners  of  the  dams,  202. 
of  animals,  lien  of  chattel  mort* 
gages  on  after  born,  203. 


Printed  in  the  United  States  of  America. 


"THE  following  pages  cohtain  advertisements  of  a  few  of 
the  Macmillan  books  on  kindred  subjects. 


This  book  is  DUE  on  the  last  date  stamped  below 


m  5 


Form  L-9-ow-7,"23 


1«D 

G82      Green 


T,pw   rav    the 

American  far-^nR-r^.       I- 


i 
AA    000  578  119    0 


H 


